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Wills and Trusts
St. Thomas University, Florida School of Law
Butler, Gordon T.

Wills and Trusts


Spring 2011

Chapter 2: Intestate Succession

I. Intestacy: covers what happens when there is not a will or the will does not devise all of decedent’s estate. #Intestate laws are designed to effect the orderly distribution of property and approximate what decedents would have done if they had made a will.

II. Intestacy in Florida:

a. Spouse Gets Share First (732.101): the spouse’s intestacy share is one of three scenarios.

i. No Living Descendants of the Decedent: spouse gets entire share

ii. Surviving Descendants of Decedent who are All Descendants of surviving spouse: spouse gets the first 60k plus half.

iii. Surviving Descendants of Decedent, of whom one is not the child of the surviving spouse: spouse gets half of the estate.

b. Share of other Heirs (732.103): after spouse takes their share, the remainder descends per stirpes to each group, but if no one in group, than move to next group.

i. To descendants of the decedent (children)

ii. Decedent’s father and mother equally, or to survivor of them

iii. Decedent’s brothers and sisters and their descendants if necessary.

1. Half-Blood (732.105): half brothers/sisters (collateral kindred of the intestate) get half of what whole brothers/sisters get.

iv. One half split between decedent’s mother and father, goes to (if one half does not exist, than all to other side):

1. Decedent’s grandparents

2. Decedent’s aunts and uncles, and their descendants.

v. Kindred of last deceased spouse.

III. More Remote Ancestors/Collaterals: remote heirs are chosen based on the Parentelic system. This system creates a parentella for parents, grandparents, etc. Each then goes down through that parent, grandparent, etc. descendants. Each person is given a number in relation to closeness of degree. This is called a Table of Consanguinity. Note, Florida does not follow this, it only goes to the third parentella, and then the property escheats. There are two ways as to how the collaterals are chosen:

a. Civil Law System: Each person with the lowest numbers split the estate evenly.

b. Modified Civil-Law System: same as the regular, accept now there is a tie breaker for people who have the same number. The person with the lowest number and who is the descendant of the closest relative to the decedent gets the whole estate.

IV. Methods of Descent (Ex. Pg 2-12)

a. Per Stirpes (FL): this is strict descent, it does not care if all children are dead, it still gets divided up as if each child was alive

b. Modified Per Stirpes: this is also known as per-capita-with-representation. This is the same as per stirpes but you have to have at least one living person in that generation.

c. UPC: this is also known as per capita at each generation. This is an even split at each generation, of what’s available to split from the above generation.

V. Rearranging Intestate Succession

a. Agreement Among Heirs: generally, heirs may separately agree to rearrange the intestate succession, but the invoke federal gift taxes.

b. Disclaimers (739.201): also called renunciation, it’s a refusal to accept gratuitously transferred property. Beneficiary can disclaim an interest to prevent creditors from reaching the property. However, a disclaimer can cause a loss of eligibility for public assistance.

*** Hypo for showing how disclaimers work. Facts, Grantor leaves 50k to A & B, but B is dead and B has disclaimed his share. A has C as a descendent. B has D and E as descendent. [Note] The difference between FL and old FL has to do with the wording in the statute (739.201(3)(a)) “disclaimed interest.” UPC uses “estate” instead of “disclaimed interest.” FL fixed the issue, not by changing the words used, but by adding a sentence to say it continues going down. UPC pretends the disclaimant predeceased the Grantor, and thus the property descends per capita at each generation.

c. Advancements: gift made during life to a family member that has the effect of reducing the share of the probate estate received by the donee by intestate succession upon the donor’s death.

i. Florida: §733.806 Advancement

1. Gift during lifetime is treated as an advancement against the heir’s share only if:

a. Declared in a contemporaneous writing by the decedent OR

b. Acknowledged in writing by the heir.

2. Advancements are valued at the time of the advancement or at the death, whichever is first.

d. Negative Wills: this is a will that disinherits someone.

i. Common Law: Negative wills recognized so long as the testator left at least one heir to succeed.

ii. UPC: Follows the testator’s intention and allows a negative will.

iii. Florida: Need to devise the entire property in order to disinherit an individual.

Chapter 3: The Changing Family

I. Who is a “Surviving Spouse”?

a. Formal Marriage: the legal status of a surviving spouse are given statutory rights, such as a family allowance, elective share, and protection against unintentional disinheritance.

b. Divorce, Separation, Misconduct

i. Florida: Generally, misconduct does not preclude the ability to take as a surviving spouse.

1. Exception: In Re Estate of Butler – x husband tells wife that he “bought” a divorce and the two separate and remarry other people. After x husband’s death, x wife realizes the divorce wasn’t valid and attempts to claim a surviving spouse status. The ct said NO, x wife’s subsequent remarriage, it was essentially a repudiation of marital obligations and thus she was estop from taking, despite there not being a valid divorce.

ii. UPC: Lists situations where a person is not a surviving spouse:

1. Marriage ended by divorce or annulment

2. Obtained or consented to a divorce or annulment that was later invalidated;

3. Participated in a marriage ceremony with a third individual;

4. Party to a valid proceeding purporting to terminate all marital property rights.

c. Putative Spouses: the purpose of the putative spouse doctrine is to protect the financial and property interests of a person who enters into a marriage believing in good faith that it is a valid marriage.

d. Common-Law Marriage

i. SOME (10): Jurisdictions which recognize common law marriages all require that the parties presently agree to enter into the relationship of H and W.

1. MOST: Require cohabitation or actually and openly living together as H and W.

2. SOME: Require the parties to hold themselves out to the world as H and W.

3. ALL: “We’re not married, we’re just living together” destroys common law marriage.

ii. Florida: do

ent (the grantor’s death). Stepchildren and foster children are generally not part of a class.

i. Examples

1. “To A and B”: generally interpreted that half goes to A and half goes to B in equal and undivided shares with no rights of survivorship. This is not a class gift. So if one is dead, than that half will go back to the decedent’s estate and pass through the residuary or intestacy if not residuary. That is if FL 732.603 (Antilapse) is not triggered.

a. “To my children, A and B”: treated in the same fashion.

b. Both scenarios create a presumption that is rebuttable.

2. “To A & B’s children. The rest to C.”: assume A is dead and B has three children, multiple interpretations:

a. A and B’s children could be one class of 4, so C is left out. [Florida ct went with this interpretation because C, who was the grantor’s other daughter, was already taken care of in the will]

b. A and B’s 3 children are each separate (no class), so C would receive A’s 1/4 share.

c. A is separate from the class of B’s children, so C would receive A’s 1/2 share.

ii. Adopted Children: generally, whether adopted children will be included in a class gift from a grantor depends on the intent of the decedent. However, in a jurisdiction that follows the stranger to adoption rule, barring any different intent, the adopted child will not be part of a class. Furthermore, when a state has done away with the rule, there is a question of whether ending that rule is to be applied retroactively. The ct will look at the legislative intent in determining whether it will be applied retroactively.

1. Florida (732.108 & 732.608): adopted children are part of a class.

iii. Adoption of Adult:

1. SOME: Not included in class gifts (unless there is a parental, child relationship).

2. SOME: Prevent adoption of spouse as being incestuous in nature.

3. SOME: Look at donative intent

iv. Illegitimate Children: generally, children born out of wedlock are always included in a class created by the genetic parents. However, if class is created by someone not a genetic parent, then something more is generally required:

1. Restatement: requires either that the genetic parent (or other relative of genetic parent) functioned as the parent of the child before the child reached the age of majority or that the genetic parent was planning to function as the parent but either died, became incapacitated, etc.

2. UPC: requires that the child have lived as a regular member of the household of the natural parent or that parent’s family.

3. Florida (732.608): does not require anything more. Persons born out of wedlock are included in class gift terminology.