A surviving spouse’s elective share in Florida is often the subject of litigation in the Florida Probate Court. Under Florida statutes, a Florida surviving spouse has the right to a share of the elective estate of the decedent. A surviving spouse’s elective share is defined by Florida statute as an amount equal to 30 percent of the elective estate.
In Malleiro v. Mori, Florida’s Third District Court of Appeal considered the competing wills of a nonresident – one will executed in New York, and one will executed in Argentina - to determine which will validly devised Decedent’s estate. This issue is particularly important in Florida, where many people from foreign countries and other states come to enjoy their retirement years.
One of the hallmark principles of estate administration is the personal representative’s right to take possession of all of the decedent’s property. Fla. Stat. § 733.607(1). However, this provision of the Probate Code also provides that such property can be left with the person presumptively entitled to it. In the face of this language, disputes arise as to (i) whether property is, in fact, the decedent’s property; and (ii) whether someone other than the personal representative has a right to possession of the property during administration.
Due process is a common issue that comes up in cases concerning all areas of Florida law. In Flegal v. Guardianship of Peter R. Swistock, Sr., due process rights were at issue in the context of a Florida guardianship involving the joint titling of stocks between a ward and his daughters.
A hearty congratulations is extended by Clark Skatoff, P.A. to Daniel Bushell, Esq. and Bushell Appellate Law P.A., for the recent victory in the Fourth District’s decision, Carroll v. Israelson, No. 4D13-4532 (Fla. 4th DCA July 1, 2015). In Carroll, the Court held that any provision in a will in favor of a divorced spouse is treated as if the surviving former spouse predeceased the decedent. Under Section 732.507(2), Florida Statutes, the provision in favor of the surviving former spouse becomes void at the time of the dissolution of marriage, not at the time of the decedent’s death.