As discussed in the last two blogs, the Florida Constitution allows resident homeowners to receive generous homestead exemptions if they qualify for a homestead exemption or reduction through the Florida Department of Revenue. In addition to the homestead programs available for veterans, the disabled, widows and widowers and to all other homeowners, the Florida Constitution allows local government municipalities to enact ordinances allowing their residents to receive additional homestead exemptions of up to an additional $50,000.

The extended homestead program is available to homeowners age 65 or older who permanently reside in their homes. The program sets forth income caps, which are subject to change annually based on consumer price indexes and cost-of-living increases.

Even if your local government does not offer an expanded or additional program or you do not qualify for it, you may be able to qualify for other state tax relief programs, including the Deployed Military Exemption program. This program is available to all actively deployed military service members who own property in Florida. Eligible service members receive property tax discounts based on the length of their military deployments.

Because of the different homestead tax programs offered by local Florida governments and the Florida Department of Revenue, you may want to contact an estate planning attorney to discuss the effects of placing property in trust while benefiting from this program.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

After reading the first blog entry in this three-part series, you should know that you may qualify for a property tax reduction or complete exemption if you are a completely and totally disabled veteran limited to wheelchair use, a quadriplegic or suffer complete blindness. If you do not qualify for the complete veterans’ exemption, you may qualify for a different homestead exemption through another homestead program.

The state offers blind or disabled widowers and widows a limited exemption of up to $500 each year. Blind widows or widowers must obtain a certificate of eligibility from the Department of Veterans’ Affairs, the Department of Education’s Division of Blind Services or through the local Social Security Administration substantiating their lack of sight.

The state also offers other residents a partial homestead exemption. The partial homestead exemption is available to any resident who owned real property in Florida as of Jan. 1 annually. All homeowners receive up to a $25,000 local tax exemption through the Florida Department of Revenue and another $25,000 exemption for local school and district taxes. Qualified veterans with disabilities affecting at least 10 percent of their bodies or vision suffered through war-related or service-related injuries may qualify for an additional monetary exemption in addition to the $50,000 exemption.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Most states impose real property taxes on their residents. In many states, tax agencies impose property taxes on personal property. Additionally, many states, including Florida, offer some homeowners property tax relief programs that allow them to reduce their annual or semiannual real property tax payments.

The Florida State Constitution gives local government tax agencies the legal rights to assess property taxes on local residents to subsidize local community programs and benefits. All Floridian homeowners receive annual property tax bills based on recent assessments conducted by local tax assessors. Florida’s homestead tax exemption programs offer many different types of homeowners the opportunities to reduce their annual real estate taxes.

The largest exemption available to Florida homeowners is the state’s Total Homestead Exemption Program. According to the rules of this program, qualified homeowners can receive a complete and total exemption from property taxes. The total exemption is available to honorable discharged veterans with permanent and total disabilities caused by war-related or service-related injuries. Only veterans with honorable discharge papers qualify for the total exemption.

More specifically, the total exemption is generally available to quadriplegic war veterans, regardless of income and non-quadriplegic, but totally disabled veterans who depend on wheelchairs for mobility or suffer from legal blindness. Non-quadriplegic veterans must meet annual income limits. All first-time filers must submit proof of their disabilities from two independently licensed physicians.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

According to Florida law, nursing homes, hospices, hospitals and some insurance organizations are legally required to provide consumers with a written summary of their legal rights to create advance health care directives.

A living will is an instrument you create while you are still alive and well enough to make those decisions. You may want to create one in addition to drafting a document appointing your health care surrogate.

Once you create a living will, you should give a copy of it to the person that you appoint as your health care surrogate if you appointed one. The surrogate has the legal ability to make decisions on your behalf regarding any medical treatments if you become incapable of making them. If you want to designate a health care surrogate, you should do that in writing. Like a living will, you must sign your surrogate document in front of two witnesses, one of which is not a spouse or a relative. Your surrogate is not able to serve as a witness to your document.

It is your legal responsibility to notify your physicians of your living will. Once you give your physician a copy of it, he must place it in your medical file for future reference.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A Living Will is a written document that allows you to make advance decisions regarding life-sustaining or prolonging medical treatments. A valid living will must contain certain information as outlined in Section 765.303 of the Florida Statutes. Also known as Health Care Advance Directives, Living Wills are completely different from legal wills.

A legal will allows a person to decide who inherits his personal and real property. A living will or health care advance directive, on the other hand, is a written document that allows a person to make decisions regarding his own health upon physical or mental incapacity.

A valid living will must be in writing and signed by the person creating it in front of at least two witnesses. At least one of the witnesses must be unrelated to the person creating it and must not be a spouse. If the person creating a living will is physically unable to sign his document, he may direct another individual to sign it on his behalf. The third party signing a living will on the drafter’s behalf must sign it for the drafter in his physical presence. Finally, to create a living will, an individual must be mentally competent at the time he signs it.

Note that a living will created in another state is valid in Florida if it was valid in the other state. In other words, similar to a legal will, a living will created outside of Florida is enforceable in Florida if it complies with the other state’s laws.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In most states, including Florida, individuals can appoint third parties to make decisions for them if they become mentally incapacitated or otherwise too ill to make decisions regarding their medical care.

In Florida, residents can use several different types of forms or documents that allow others to help them make decisions for them. Before using any of these forms, you should contact our office or another experienced estate planning attorney to help you determine whether or not they would be suitable for your individual needs.

You may use a Health Care Surrogate Designation form to appoint a mentally competent adult to make decisions on your behalf regarding medical treatments and health care decisions if you become mentally unable to make them. If you become well, your designation form is no longer valid, since you can make your own medical decisions. A Health Care Surrogate Designation document is similar to a living will but serves different purposes. In the next two blogs, we will cover the definitions of both and the differences between them.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you are asking your spouse to waive his rights to an elective share of your probate property by signing a prenuptial or postnuptial agreement, the validity of that waiver depends on several factors. At the very least, you must have entered into a valid written premarital or postnuptial agreement. A binding agreement requires that your spouse waive his inheritance rights voluntarily and without any fraud or duress. In other words, you cannot force him to sign an agreement by threatening him. You must also provide a full disclosure of your financial wealth before you attempt to have him sign away his rights to receive a portion of your inheritance. However, the financial disclosure may only be required if your spouse signs a postnuptial agreement – not a prenuptial agreement. Providing your prospective spouse a full financial disclosure may be in your best interest to avoid subsequent attempts to invalidate your prenuptial agreement. Each of you should also have separate attorneys representing your financial interests, and most courts agree that one attorney cannot represent both of you because of conflicts of interest.

Many spouses enter into prenuptial agreements if they amassed a significant amount of wealth before marriage. This often happens with second marriages or marriages that occur with older couples. To keep property separate, it may be a good idea to speak with an attorney regarding the benefits of drafting a prenuptial or postnuptial agreement to protect your separate assets.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In light of the Florida Probate Code’s statute establishing elective share rights for surviving spouses, is there a way to legally disinherit your spouse? We discussed that without a properly drafted and valid prenuptial or postnuptial agreement, you cannot disinherit your spouse. You can disinherit your spouse if she freely waives her right to receive an elective share by entering into a nuptial agreement. To disclaim her statutory 30 percent mandatory inheritance, your spouse must freely enter into a prenuptial agreement. In some cases, your spouse can waive her elective share rights after marriage by entering into a valid postnuptial agreement. State laws govern the essential elements of binding marital agreements.

In Florida, the Florida Statutes Chapter 732 governs the elective share rights for surviving spouses and their rights to community or marital property. Generally, a spouse’s elective share includes community or marital property and separate property. Fully explaining the marital property rights that spouses have requires more than a 300-or 400-word article or blog.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

The Florida Probate Code is Title XLII, Chapters 731 through 735 of the 2011 Florida Statutes. Pursuant to the Florida Probate Code, a surviving spouse has a legal right to receive an elective share of her deceased spouse’s probate estate at his death. By electing to receive her statutory share, she disclaims her interest in his will in favor of her elective share. Florida law sets a surviving spouse’s elective share at 30 percent of the decedent’s estate.

Thus, a wife who survives her husband has a legal right to disclaim her interest created by his will in favor of her 30 percent elective share. By creating the elective share statute, the Florida Legislature prohibits spouses from entirely disinheriting their surviving spouses. To prevent one spouse from having to rely on the state for monetary assistance and to prevent that spouse from becoming destitute and impoverished, the Florida Legislature allows a surviving spouse to choose an elective share. In some situations, spouses can disinherit one another with proper estate planning, which includes having to draft validly created prenuptial or postnuptial agreements. Although the Florida Legislature does not advocate divorce, it recognized the practical need for some spouses to protect their separate assets.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

When you die without a will in Florida, you are subject to the state’s intestacy laws. If you are subject to Florida’s intestacy laws, the order of priority that your heirs have to your probate assets are determined by statute. If you die without any living descendants but leave behind a surviving spouse, your surviving spouse has a legal right to receive your entire probate estate.

Under Florida law, living descendants include your children, their children (your grandchildren) and descendants of their children. If you die with a surviving spouse and surviving descendants, their inheritances depend on whether your living descendants are related to you and your surviving spouse. Your surviving spouse can receive your entire estate if this is the case, and your surviving spouse has no other surviving descendants. The remaining intestacy rules depend on whether your surviving spouse has issue of her own and whether you leave behind surviving children who are not your surviving spouse’s children. If you were unmarried at the time of your death, your surviving parents receive your probate estate if you leave behind no living descendants. If children and grandchildren survive you, they will receive your assets in shares determined by Florida’s intestacy laws. If you are unmarried, and your parents predeceased you, your siblings receive your probate estate in shares determined by Florida law. 

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.