DIVORCE AND PRIOR SPOUSE DEVISE

Question 1

WILLS AND ADMINISTRATION OF ESTATES

Answer 1

in Florida, when a couple divorces, any will provisions for the ex-spouse are generally treated as if she had predeceased the testator. If no other beneficiary is named and there is no residuary, the devise then passes by the intestacy statutes. After a surviving spouse, the next heirs are a testator’s descendants?per stirpes. Clauses attempting to disinherit heirs are not enforced.

You can have part of the distribution go by intestacy (will did not provide for an alternative disposition) and the rest of the disposition be testate.

Question 2

WILLS AND ADMINISTRATION OF ESTATES - DISCLAIMERS

EXPLAIN WHO CAN DISCLAIM PROPERTY DISTRIBUTED IN A WILL AND HOW DOES ONE GO ABOUT IT?

Answer 2

In Florida, beneficiaries generally may disclaim any property distributed by a will. However, beneficiaries who are insolvent at the time of inheritance may not. The disclaimer must:
* Be in writing and identified as a disclaimer

• Describe the interest or power being disclaimed
• Be signed, witnessed, and acknowledged and
• Be delivered to the person with the property’s legal title or obligated to distribute the property or filed with the clerk of the court in any county where administration is proper.

A disclaimer may be filed at any time in Florida.

Question 3

WILLS AND ADMINISTRATION OF ESTATES - SEPARATED SPOUSES AND RIGHTS TO IN

Answer 3

In Florida, when a decedent dies without a valid will, the decedent’s estate passes by the intestacy statutes. Under the statutes, when a decedent is survived by a spouse and children who are also the children of the spouse, the spouse inherits the decedent’s entire estate. A divorced spouse is not entitled to inherit under the statutes. When a couple is merely separated, without a divorce, the surviving spouse is entitled to inherit.

Answer 4

Florida’s elective share statute is designed to protect surviving spouses from being disinherited. The spouse may elect to take this share by filing for it. If the surviving spouse dies before making the election, the spouse’s personal representative may not make the election on behalf of the spouse’s estate.

Question 5

FLORIDA WILLS - INTESTATE SUCCESSION

DEFINE AN INTESTATE ESTATE.

Answer 5

Decedent’s death is the event that vests the heirs’ right to decedent’s intestate property

Question 6

FLORIDA WILLS - INTESTATE ESTATE DISTRIBUTION

WHAT ARE THE RULES FOR DISTRIBUTING AN INTESTATE ESTATE AS IT RELATES TO THE SURVIVING SPOUSE?

Answer 6

Spouse’s share of intestate estate:
1. no surviving descendant or decedent, then entire intestate estate.
2. if decedent is survived by 1 or more descendants who are also descendants of surviving spouse , and surviving spouse has no other descendants, then the entire intestate estate.
3. if there are 1 or more surviving descendants of decedent who are not lineal descendants of surviving spouse, then 1/2 of intestate estate.
4. if there are 1 or more surviving descendants of surviving decedent, all of whom are also descenants of surviving spouse, and surviving spouse has 1 or more descendants who are not descendants of decentent, then 1/2 of the intestate estate.

Question 7

FLORIDA WILLS - DISTRIBUTION OF INTESTATE ESTATE TO OTHER HEIRS NOT SURV

WHAT ARE THE RULES FOR DISTRIBUTING THE INTESTATE ESTATE FOR OTHER HEIRS NOT THE SURVIVING SPOUSE?

Answer 7

Share of other heirs: This is part of the intestate estate not passing to the surviving spouse or entire intestate estate if there is no surviving spouse and descends as follows:
1. to descendants of decedent
2. no descendant, to decedent’s father and mother equally, or to the survivor of them
3. no parents, to decedent’s brothers and sisters and the decendants of deceased brothers and sisters
4. none of the foregoing, estate must be divided, 1/2 of which must go to decedent’s paternal and the other 1/2 to decedent’s maternal kindred in the following order:
a. Grandfather and grandmother equally, or to the survivor of them.
b. no grandfather or grandmother, to uncles and aunts of decedent
c. no paternal kindred or no maternal kindred, estate must go to the other kindred who survive, in the order stated above.
5. No kindred of either part, the whole of the property must go to the kindred of the last deceased spouse of decedent as if deceased spouse had survived decedent and then died intestate entitled to the estate.

Question 8

FLORIDA WILLS - CHILDREN & OTHER INHERITANCE RIGHTS TO INTESTATE ESTATE

EXPLAIN WHAT HAPPENS TO CHILDREN AND OTHER HEIRS’ INHERITANCE RIGHTS WHEN THERE IS AN INTESTATE ESTATE.

Answer 8

Any portion of the decedent’s intestate estate that does not descend to the surviving spouse descends according to the following rules:
1. First to D’s descendants–per stirpes.
2. If no descendants - then to D’s parents or surviving parnt
3. If no descendants or parents, then to D’s siblings and their descendants.
4. If no descendants, parents, or siblings or their descendants, then one-half passes to paternal kindred and one-half to the maternal kindred in the following order:
a. To D’s grandfather and grandmother equally, or to the survivor of them.
b. If neither grandparent survives, then to the grandparents’ descendants, per stirpes
c. If no descendants of the maternal grandparents survive, then to the kindred on the paternal side; if no descendants of the paternal grandparents survice, then to the kindred on the maternal side.
d. If no grandparents or their descendants surive, then to the kindred of the last deceased spouse of the D, as if the spouse survived D and then dies intestate.

5. If none of the persons listed above survive, D’s property will escheat to the state of Florida.

Question 9

FLORIDA WILLS - PER STIRPES DISTRIBUTION

FLORIDA FOLLOWS A STRICT PER STIRPES RULE TO DETERMINE WHICH OF THE DECEDENT’S DESCENDANTS ARE ENTITLED TO INHERIT WHERE THERE IS AN INTESTATE ESTATE. EXPLAIN THIS RULE.

Answer 9

Under this rule, the decedent’s intestate share is divided at the generation nearest the decedent into as many shares as there are surviving members of that generation and deceased members who left surviving descendants.

Question 10

FLORIDA WILLS - PER CAPITA WITH REPRESENTATION DISTRIBUTION

THE PER CAPITA WITH REPRESENTATION RULE FOR DISTRIBUTION OF A DECEDENT’S INTESTATE ESTATE HAS BEEN ADOPTED BY A MAJORITY OF STATES, BUT NOT FLORIDA. HOW DOES THIS DIFFER FROM FL?

Answer 10

Under the per capita with representation rule which has been adopted by a majority of states, the estate is divided at the nearest generational level in which there are surviving descendants.

Question 11

FLORIDA WILLS -ADMINISTRATION OF ESTATES

IN FL, WHEN CAN A PERSONAL REPRESENTATIVE PETITION THE COURT TO REOPEN AN ESTATE UPON THE FINDING OF A LATER WILL?

Answer 11

Explanation
In Florida, an estate may be reopened if additional estate property is discovered. It will not be reopened if a will or later will is subsequently found.

Here, the estate was closed. After closing, a new will was found but no new property (Choice A). Consequently, the court should deny the personal representative’s petition.

Answer 12

In Florida, when a couple divorces, any will provisions for the ex-spouse are generally treated as if she had predeceased the testator. If no other beneficiary is named and there is no residuary, the devise then passes by the intestacy statutes. After a surviving spouse, the next heirs are a testator’s descendants per stirpes. Clauses attempting to disinherit heirs are not enforced.

Here, the testator left his farm in a one half-interest to his spouse and his son. The son is entitled to his one-half interest. However, because the testator was divorced when he died, the ex-spouse is not entitled to the one-half interest in the farm, and it will go to the testator’s next heirs (Choice A).

The testator’s heirs are his son and daughter. The provision in the will that the daughter will not receive any of the testator’s estate is not given any weight and she is entitled to inherit under the intestacy statutes (Choice B). Consequently, the son and daughter will equally split the ex-spouse’s one half-share of the farm (Choice C).

Question 13

Florida’s elective share statute is designed to protect surviving spouses from being disinherited. The spouse may elect to take this share by filing for it. If the surviving spouse dies before making the election, the spouse’s personal representative may not make the election on behalf of the spouse’s estate.

Answer 13

In Florida, beneficiaries generally may disclaim any property distributed by a will. However, beneficiaries who are insolvent at the time of inheritance may not.
The disclaimer must:
* Be in writing and identified as a disclaimer

• Describe the interest or power being disclaimed
• Be signed, witnessed, and acknowledged and
• Be delivered to the person with the property’s legal title or obligated to distribute the property or filed with the clerk of the court in any county where administration is proper.

A disclaimer may be filed at any time in Florida.

Here, the youngest child filed a notarized disclaimer with the personal representative. Even though it was a year after her father’s death, the disclaimer is still valid in Florida.

Answer 14

Florida’s elective share statute is designed to protect surviving spouses from being disinherited. The spouse may elect to take this share by filing for it. If the surviving spouse dies before making the election, the spouse’s personal representative may not make the election on behalf of the spouse’s estate.

Answer 15

A will that is neither handwritten nor nuncupative (i.e., oral) and was valid in the place where it was executed is admissible to probate in Florida.

Question 16

FLORIDA WILLS : TESTAMENTARY INTENT

WHAT IS REQUIRED FOR A TESTATOR’S DOCUMENT TO BE SUSTAINED AS A WILL?

Answer 16

A testator must execute a document with present testamentary intent in order for the document to be sustained as a will.

Question 17

FLORIDA WILLS - NON-PROBATE ASSETS

HOW ARE NON-PROBATE ASSETS DISTRIBUTED UPON DEATH OF THE TESTATOR?

Answer 17

Non-probate assets, including a life insurance policy, a Totten trust, and a house owned in a joint tenancy with right of survivorship, are distributed pursuant to the terms of the instrument that created the asset.

Question 18

FLORIDA WILLS - WILL CONTESTS BASED ON FRAUD AND UNDUE INFLUENCE

WHEN MUST AN INTERESTED PERSON BRING AN ACTION FOR THE PROCUREMENT OF A WILL DEVISE BASED ON FRAUD? WHAT ARE THE ELEMENTS THAT MUST BE PROVEN?

Answer 18

In general, an interested person must bring an action to establish the fraud, duress, or undue influence within four years after the decedent’s date of death. The cause of action accrues on the decedent’s date of death, so the court’s holding regarding the accruing of the action was correct. (Finding I)

The person challenging the marriage has the burden of establishing by a preponderance of the evidence that the marriage was procured by fraud, duress, or undue influence. Therefore, the court inaccurately held that the children must meet an incorrectly higher burden. (Finding II)

If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses. Here, the court could not draw the conclusion of ratification based on one spouse alone, and ratification would only occur if both spouses lived together with knowledge of the fraud, duress, or undue influence.

Question 19

FLORIDA WILLS - LOST WILLS

CAN AN INTERESTED PARTY SUBMIT A DRAFT COPY OR A CARBON COPY OF THE TESTATOR’S WILL FOR PROBATE?

Answer 19

In Florida, if a will that was last seen in the testator’s possession cannot be found, a rebuttable presumption arises that the testator revoked the will, which can only be overcome by competent and substantial evidence. If overcome, the will can be probated if (i) its specific content is proved by the testimony of two disinterested witnesses or (ii) an identical copy is proved by the testimony of one disinterested witness. A draft of a will does not meet this requirement.

Question 20

FLORIDA WILLS - SPOUSE’S ELECTIVE SHARE

IN LIEU OF TAKING UNDER THE DECEDENT’S WILL, WHAT OPTIONS DOES THE SURVIVING SPOUSE HAVE? WHAT IS THE SPOUSE’S ELECTIVE SHARE AND WHAT IS INCLUDED IN THE CALCULATION?

Answer 20

In lieu of the decedent’s will, a surviving spouse may elect to take 30 percent of the decedent’s elective estate, which includes the decedent’s probate estate as well as, among other items, the decedent’s ownership interest in a “Paid On Death (POD)” account and the net cash surrender value immediately before death of any insurance policies on the decedent’s life.

Question 21

FLORIDA WILLS - EXONERATION OF LIENS ON DECEDENT’S PROPERTY

WHAT HAPPENS TO PROPERTY THAT IS PASSED ON TO THE BENEFICIARY THAT HAS A MORTGAGE/LIEN ON IT? WHO IS RESPONSIBLE FOR THE OUTSTANDING LOAN/MORTGAGE?

Answer 21

A creditor’s failure to file a claim for liability against the decedent’s estate does not affect the creditor’s ability to enforce a lien or mortgage on the decedent’s property.

But beneficiary is not personally liable.

Question 22

FLORIDA WILLS - PERSONAL REPRESENTATIVE CHALLENGE

IF AN INTERESTED PARTY WANTS TO CHALLENGE THE APPOINTMENT OF A PERSONAL REPRESENTATIVE , HOW LONG DOES HE HAVE TO CHALLENGE THIS?

Answer 22

Among the qualifications of a person to serve as personal representative of a decedent’s estate is that the person be a Florida resident if the person is not related by blood or marriage to the decedent. However, a person who is served with notice of the opening of the administration of a decedent’s estate and the appointment of a personal representative has three months in which to challenge the appointment of the personal representative.

Question 23

FLORIDA WILLS - PRENUPTIAL WAIVER OF SPOUSAL ELECTIVE SHARE

IN FLORIDA, WILL A PRENUPTIAL WAIVER OF MARITAL RIGHTS, SUCH AS THE ELECTIVE SHARE BE ENFORCEABLE AND VALID?

Answer 23

While a waiver of marital rights executed after marriage requires the fair disclosure of assets to the spouse executing the waiver by the other spouse, no such disclosure is required regarding a prenuptial waiver.

Question 24

CIVIL PROCEDURE MBES - VENUE

WHAT ARE THE VENUE RULES? SPEFICALLY, GIVE THE SPECIAL VENUE RULE THAT APPLIES TO A DEFENDANT WHO IS A NONRESIDENT ONF THE U.S.

Answer 24

Venue is the geographic location of a federal district court where a case may be heard. Under the general venue statute, venue is proper in a judicial district where:

any defendant resides—but only if all defendants reside in the same state

a substantial portion of the events occurred or a substantial part of the property at issue is located or

any defendant is subject to the court’s personal jurisdiction—but only if venue cannot be established under the above provisions.

However, special venue rules apply in certain situations, including when a defendant is a nonresident of the U.S. (like the jeweler here). In this situation, venue is proper in any judicial district—including a district in the state where the buyer resides.

Question 25

CIVIL PROCEDURE MBES - DIVERSITY OF CITIZENSHIP

WHEN DOES DIVERSITY OF CITIZENSHIP EXIST –SUFFICIENT TO ESTABLISH DIVERSITY JURISDICTION UNDER THE FEDERAL RULES OF CIVIL PROCEDURE?

Answer 25

Diversity of citizenship exists when the opposing parties are citizens of different states at the time the complaint is filed. Citizenship is based on where a person is domiciled—i.e., where the person is physically present and intends to reside indefinitely. A person’s domicile continues until definitively changed because he/she (1) establishes a physical presence in a new place and (2) manifests an intent to reside there indefinitely.

Question 26

CIVIL PROCEDURE MBES: PERSONAL JURISDICTION /SPECIFIC JURISDICTION

IF A NONRSIDENT HAS NOT CONSENTED TO A COURT’S PERSONAL JURISDICTION OR BEEN SERVED WITH PROCESS WITHIN THE FORUM STATE, THERE HOW MUST PERSONAL JURISDICTION BE ESTABLISHED?

Answer 26

A court must have personal jurisdiction—i.e., authority over the parties (or property) before the court—to hear a case. A federal court has the same personal jurisdiction as the courts of the state in which it is located (i.e., the forum state). If a nonresident defendant has not consented to a court’s personal jurisdiction or been served with process within the forum state (as seen with the company here), then personal jurisdiction must be established through either:

general jurisdiction – when the defendant has continuous and systematic contacts with the forum state that are so substantial that the defendant is essentially “at home” (e.g., where a company is incorporated) or

specific jurisdiction – when the plaintiff’s claim arises from the defendant’s minimum contacts with the forum state and the exercise of jurisdiction would comply with notions of fair play and substantial justice.

A forum state’s long-arm statute specifies when a court within the state can exercise specific personal jurisdiction over a nonresident defendant.

Question 27

CIVIL PROCEDURE MBES: PRELIMINARY INJUNCTIONS

WHEN MAY A COURT GRANT A PRELIMINARY INJUNCTION?

Answer 27

A preliminary injunction is a temporary court order that commands or prohibits certain actions while the case is pending before the court. This form of equitable relief is extraordinary and granted in limited circumstances since it is issued prior to a full hearing on the merits of the case. As a result, a federal court may grant a preliminary injunction only when it is established that:

the movant is likely to succeed on the merits

the movant is likely to suffer irreparable harm—i.e., an injury that cannot be compensated by monetary damages—in the absence of relief

the balance of equities is in the movant’s favor—i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)—and

the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.