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 If you become well, your designation form is no longer valid, since you can make your own medical decisions.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.

Continuing the discussion covering what happens to residents who die without valid wills in Florida, this blog entry discusses the disadvantages to dying intestate. An intestate is a person who dies without first creating a will. A person who dies intestate is subject to the Florida intestacy laws within the Florida Probate Code. The Florida Probate Code sets forth a mandatory order of succession as to which heirs have priority in receiving an inheritance from your probate estate.

If there are certain heirs you would like to exclude from your will (except for your surviving spouse), you should make sure you create a valid will incorporating your intentions. If you do not have a will, the state’s intestacy laws govern who receives your assets, and you will have no control over those dispositions. By drafting a written will, you maintain a significant amount of legal control as to which heirs can inherit your assets. Furthermore, you can also bequeath your property to a specific group if you are unmarried and cannot find any heirs. If you leave behind no surviving descendants, remote heirs, parents, siblings or a surviving spouse, your probate estate may escheat or pass to the state.

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

If you die without a validly written will in Florida, your assets are subject to the state’s intestacy laws. An intestate is someone who dies without a valid will. If you die intestate, your assets escheat to the state only if you die without any surviving heirs. Rarely does this occur, and in most cases, an intestate’s property passes to his living heirs in a predetermined order. Your heirs are your living blood relatives, living descendants or your surviving spouse.

If you die with a validly created will, your heirs and beneficiaries will receive their shares of your estate according to your will in most cases. However, Florida law allows your surviving spouse and your surviving dependents to elect a 30 percent share of your probate assets. If your surviving spouse elects the 30 percent share of your elective estate, he or she must give up your testamentary disposition. In other words, if you die and your wife survives you, your wife can elect her elective share pursuant to Florida law or her disposition as set forth in your will. As such, Florida law prohibits you from totally disinheriting your surviving dependent children and your spouse in most circumstances. Your family’s elective share includes probate and non-probate property. Your surviving spouse and children may further have rights to a family allowance and exempt homestead property.

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

The Florida Probate Code allows you to create a valid will if you are legally competent. A resident is legally competent if he is of sound mind and is 18 or older. If you are under 18 years old, you can make a will if you were legally emancipated through marriage or court order. The will must be in writing and created without undue influence, duress or proof of mental incompetence. Furthermore, you must sign your will in front of two witnesses, and they must sign their signatures in front of you. You and your witnesses must sign your will at the end of your testamentary instructions and bequests. Generally, your witnesses must be impartial, unrelated and stand to gain nothing from your will. In other words, your witnesses should not be potential beneficiaries to your will.

You must also have directed your witnesses to sign your will so that you and your witnesses have actual knowledge – not just constructive knowledge – that the document signed is your last will and testament. If you are physically unable to sign your will but possess the mental capacity to sign your will, you can direct someone else to sign your will, as long as that person is an impartial party, at least 18 years old and mentally competent. The third party who signs your will if you are physically unable to do so must sign your will in front of you and your witnesses.

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

Section 732.901 of the Florida Probate Code codifies the legal requirements for custodians who locate a decedent’s will. This section of the Florida Probate Code requires the custodian who locates a testator’s will to file it within 10 days after he learns of the testator’s death. A custodian must deposit a decedent’s will with the local circuit  court in the  county of the decedent’s death or residence. The custodian must provide the probate court with the testator’s Social Security number and his approximate date of death. Failure of a custodian to file or deposit the testator’s will with a local probate court can lead to an award of attorney’s fees, court costs and damages against him for failing to comply with the Florida Probate Code.

If entrusted with the safekeeping of a Florida resident’s will, you are the legal custodian required to submit the will into probate. A Florida probate court can require you to testify under oath of the authenticity of a decedent’s will. If you provide the court with a false statement, you are guilty of perjury if you knowingly withheld information or knowingly provided false information regarding a document’s authenticity. If you are also the personal representative or executor of a decedent’s will, you will have further legal obligations to pay creditors and to administer the decedent’s estate. As a custodian, once you submit the decedent’s will, the Florida probate court will attempt to locate witnesses who witnessed the decedent’s signing of his will, unless the will is self-proving.

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

Section 732.503 of the 2011 Florida Statutes allows residents to create self-proving wills. A self-proving will is one that is self-authenticating. In other words, a Florida probate court will admit a decedent’s will into probate without requiring the testimony of the two independent witnesses who signed the will. Typically, a non-self-authenticating will is subject to the Florida Probate Code’s requirements for authenticating a decedent’s will. The normal probate process a Florida probate court follows after someone files a decedent’s will into probate is to authenticate his will as valid as his last will and testament.

The authentication process requires that the probate court locate the witnesses who signed their signatures attesting to the authentication of a decedent’s will. If the witnesses are not available because they are no longer alive, they have moved and cannot be located, or they are mentally incompetent, a probate court will have to establish authenticity in other ways. Generally, the authentication process can unnecessarily slow down the probate process. By self-proving your will and attaching an affidavit including signatures from two witnesses stating under oath that they personally witnessed you signing your will and including your own signature, it may become unnecessary to prove you validly executed your will. Once a notary includes an attestation clause and notarizes your affidavit, you can self-prove your will, and a probate court will not have to obtain the testimony of your witnesses. Our office can help you prepare the self-proving affidavit.

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