Choice-of-law problems involving marital property are relatively uncommon, but when they do come up it’s probably going to be in a probate proceeding. Even for Florida practitioners long accustomed to litigating cross-border matters (both domestic and international) these cases can be challenging. As explained by Prof. Finch in Choice-of-Law and Property, “[i]n the probate
In probate proceedings how assets are titled is a big deal. While I may walk around thinking that the assets of my single-member LLC are all mine, they’re really not. What I actually “own” or hold title to is my LLC membership interest, and it’s the LLC that in turn owns or holds title to
Advancements in assisted reproductive technology have created a class of heirs that would have been unimaginable to prior generations: children both conceived and born after one, or maybe even both, of their genetic parents has died. Falling under the general umbrella term of “posthumous conception,” they are the product of scientific breakthroughs dramatically extending the
If you make your living writing wills and trusts, or administering them, or litigating them, you live in a world dominated by words; be they contained in a client’s personal estate planning documents or the public statutes and court opinions governing their application.
And as practitioners we all rely on informal heuristics we’ve picked up
In Florida a couple’s marital property rights are based on the common law’s “separate property” regime. According to the IRS, the “theory underlying common law is that each spouse is a separate individual with separate legal and property rights.”
There’s a competing marital-property-rights regime known as “community property” that, as reported by the IRS
I recently reported on the Erlandsson v. Erlandsson decision and how the 4th DCA’s opinion highlighted the sometimes gut wrenching ethical challenges attorneys face when representing an adult client who’s cognitively impaired in a way that is clearly affecting his or her decision making. Enrique Zamora, one of South Florida’s premier elder law attorneys,
F.S. 732.5165 tells us that a will (or any party of it) procured by undue influence is void. And F.S. 733.107(1) tells us the person challenging a will on undue influence grounds (or any other basis) bears the initial burden of proof.
But what if direct evidence of the undue influence is impossible to
One of the most confoundingly difficult challenges we all face as trusts and estates attorneys is what to do if a client’s cognitively declining or otherwise impaired in a way that is clearly affecting his or her decision making. The two most common scenarios for how this dilemma plays out in real life are: (i)
Florida’s Trust Code consists overwhelmingly of default rules that settlors are free to opt out of or modify anytime. There are, however, a core set of rules listed in F.S. 736.0105 that are mandatory; you can’t draft around them. For example, under F.S. 736.0105(2)(e) your trust agreement can’t eliminate the “power of the court to
Under the Florida Uniform Disposition of Community Property Rights at Death Act, married couples moving to Florida from community property jurisdictions bring their testamentary community property rights with them. This includes couples moving to Florida from any of our nine U.S. community property states, and also includes those moving to Florida from anywhere else
