A residence is a location where one may live part-time or full-time. A domicile is a person’s legal address, and it is located in the state where an individual pays taxes. In this sense, domicile is where a person plans to have their permanent home. It is the place they eventually intend to return to if they reside in another place for a brief time. A residence, on the other hand, is the place one temporarily lives.

Florida Statute §222.17 states that a person can show intent to maintain a Florida residence as a permanent home by filing a sworn Declaration of Domicile with the Clerk of the Courts. They can submit the form with all the requirements by mail or in person at their local County Courthouse or applicable government office.

Domicile generally refers to where one lives, i.e., their residence that they intend to keep for the foreseeable future. The stated domicile has legal consequences for tax, probate, asset protection, and numerous other purposes.

Domicile is the state where a person has his or her true and permanent home. For military members, it is the place to which the member intends to return at the conclusion of his or her military service. It is the place that they consider their permanent home. Depending on their service, and local policies, an active-duty military member can change their legal residence by visiting their local base legal office and/or base finance office and completing a DD Form 2058, State of Legal Residence Certificate.

In order to establish Florida residency, one needs to formally establish permanent residency or domicile in Florida. Just having a Florida address is often insufficient, especially if a person still owns real estate in another state. Fortunately, becoming a bona fide Floridian only requires a few straightforward steps as follows: Apply for a Florida Driver’s License; Register Vehicles in Florida; File a Declaration of Domicile; Register to Vote in Florida; File a Homestead Declaration; Obtain Florida Employment; Enroll children in Florida Schools; Get Involved in the Local Community; Move and/or Start a Florida Business and possibly Update one’s Estate Planning Documents.

Further, if an individual owns homes in more than one state and wants to make Florida primary, using one’s Florida address for bank accounts and insurance policies, among others, helps establish Florida domicile. Transferring one’s banking to Florida-based financial institutions can also serve as evidence, as well as updating newspaper or magazine subscriptions to a Florida address.

Finally, remember to update an estate plan to Florida specific documents. For those who have a trust, this may involve having a Florida amended and restated trust prepared.  For others, having a Florida Last Will & Testament prepared, as well as a Florida Durable Power of Attorney(for financial matters) and Florida Healthcare documents(for medical purposes and decisions) may suffice.

An Important Note:  There are differences in how a legal state of residency is determined for various purposes. For example, Florida courts often determine legal residency for asset protection purposes based upon Florida Statute Sec 222.17.  However, the rules for bankruptcy are quite different, and if this is a person’s situation or concern, consultation with a bankruptcy attorney will be critical.

For tax purposes, generally, one would need to establish that they are living in Florida for a total aggregate period of at least 6 months of the year. For people migrating to Florida, it is always recommended consulting with a tax professional in their former home state to assure a smooth and effective transition. For all other purposes, there is no waiting period for becoming a Florida resident.

Choosing a legal state of domicile can be an especially crucial decision for individuals who spend most of their time traveling the country by Recreational Vehicle. Expectedly, Florida is one of the most popular selections due to the low taxes, competitive insurance rates, and relative ease of maintaining driver’s licenses and vehicle registrations.

Along with the subjects encountered by new and part-year residents discussed above, “RVers” also need to establish a genuine Florida address where they can receive mail. A Post Office (P.O.) box will not suffice for residency purposes, but there are commercial mail-service companies that allow you to maintain a physical address in Florida. Receiving important mail at that address lets one demonstrate sufficient residency to register vehicles and obtain a driver’s license. Interestingly, though, if you are a full-time RVer, the license plate number on your Florida-registered RV (not the mail-service address) will serve as the “address” on your driver’s license. That means updating the vehicle’s registration needs to come first.

Again, there are very real advantages to becoming a legal resident of Florida. As already mentioned, Florida is well-known for its low-tax, business-friendly legal and regulatory environment. And, if estate planning is on one’s mind, they will be hard pressed to find a state with stronger asset-protection laws. In fact, Florida homestead and other home ownership laws provide asset protection, securing a primary residence from creditors’ attachment and steep property tax increases. Consequently, applying for a homestead exemption is another effective way to show one’s intent to make Florida their permanent legal home.

If an individual or family owns a Florida home that serves as their primary residence, they can claim a homestead exemption by filing an application with the county Property Appraiser of the county where the home is located. The exemption lets one exempt up to $50,000 of the home’s value from property tax calculations. Even if the property’s value increases dramatically, a person will not get impacted by big tax increases since Florida’s Save Our Homes Amendment limits yearly increases in assessed value to either three percent or the CPI-measured rate of inflation (whichever is lower).

Therefore, if an individual spends time at homes in two different states, considering Florida “primary” allows an individual to save on income and property taxes and protect their home’s value. Accordingly, the act of applying for a Florida homestead exemption serves as further evidence of one’s intent to treat Florida as their permanent state of domicile. All the foregoing allows an individual to ultimately take advantage of the many benefits of establishing Florida permanent residency or domicile.

If there are any additional QUESTIONS regarding the foregoing matters, or you would like to discuss your legal concerns or issues, please contact, or call the Attorneys at CASERTA & SPIRITI in Miami Lakes, Florida at Tel. # (305) 463-8808.

A version of the Uniform Simultaneous Death Act is Florida’s Simultaneous Death Law, which is found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two or more people die and there is insufficient evidence concerning when certain individuals have died other than simultaneously. This situation is common in fatal accidents where it is not readily known which individual died first. This law can be important when it comes to figuring out the ownership of joint accounts, which passes to the survivor. HOWEVER, who may be considered the survivor? Therefore, determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament may be difficult unless a legal formula is used.

This law only takes effect when the couple’s Last Wills are silent as to which spouse is presumed to have survived the other, or when the spouses die without an estate plan or Will. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on the priority of death and there is insufficient evidence that the persons have died other than simultaneously, the property of each person shall be disposed of as if that person survived.” 

The foregoing statute also contemplates when two or more beneficiaries are designated to take successively by reason of survivorship, disposition of property held by joint tenants or tenants by the entirety, and insurance policies where the insured and beneficiary both die and there is insufficient evidence that they died otherwise than simultaneously. Consequently, the practical effect of Florida Statute 732.601 is that when two people die and their order of death cannot be readily determined, each person’s property will be treated as if they outlived the other. In other words, if a mother has her son as the primary beneficiary of a life insurance policy and her sister as the contingent beneficiary, and both mother and son perish in a plane crash with no evidence as to order of death, then the policy would be payable to the sister as a contingent beneficiary.

In a probate proceeding, this distinction is particularly important, as contingent beneficiaries may have rights of which they are unaware due to the Simultaneous Death Law. The language contained in a Last Will and Testament, or Trust or policy of insurance can provide differently by their respective terms, but in case of a Simultaneous Death, it may be to one’s advantage to speak to a Florida probate attorney regarding the facts.

Now, what happens to the estates of two spouses who die in close in time to one another? For that matter, what happens if a married couple is killed simultaneously–such as in a car or plane accident–and it is impossible to determine who died first? The answer to these questions depends on Florida law and the terms of each spouse’s individual estate plan documents.

Absent a specific provision in a person’s estate plan or other “governing instrument,” Florida law directs that when “there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.” What that means is that if a person and their spouse die at the same time, then each is presumed to have survived the other for purposes of their respective estate plans.

The foregoing may sound like a contradiction, but it makes sense if one seriously thinks about it in practical terms. For instance, an individual and their spouse each have a Last Will which leaves their entire estate to the other spouse. Under Florida’s simultaneous death rule, each of their respective estates assumes the other spouse died first, therefore, the estates would then go to the alternate beneficiaries, such as children. Absent this rule, each spouse’s estate would go to other spouse’s estate–effectively creating a legal paradox.

The simultaneous death rule also applies to life insurance policies, which means if a person takes out a policy on their own life and their spouse is the named beneficiary, in case of a simultaneous death the spouse is presumed to have died before the subject person. The policy benefits would then go to the alternate or contingent beneficiary named. If no alternate beneficiary is named, then the proceeds go to the estate of the insured.

There are also situations where one may want to impose a “survivorship” requirement on a beneficiary to your estate, including the spouse or another family member. As an example, the Last Will might include language which says no beneficiary may receive a bequest unless they survive you by 30, 60 or 90 days. Again, the reason for this language is to avoid potential issues with multiple estates administering the same property.

Some states impose automatic survivorship periods, typically 120 hours (or 5 days) on all heirs and beneficiaries. Florida does not have such a rule. However, one is still free to require a survivorship period in the Last Will or Trust if they desire, although it should typically not last more than 60 days.

When preparing an estate plan, one can work around the Uniform Simultaneous Death Act if they do not care for the result following its provisions. Consequently, the Last Wills can stipulate that, in case of a simultaneous death, only one of the of the spouses is considered or deemed to have survived the other.

It is important to collaborate with an attorney who understands all aspects of Florida law. Consequently, the form of joint ownership and terms in estate planning documents used will be critical to determining who will benefit in the case of a simultaneous death.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

(A Quick Review)

Florida has a 60-month Medicaid Look-Back Period that immediately precedes one’s Medicaid application date. During this timeframe, Medicaid checks to ensure no assets were gifted or sold under fair market value.

To qualify for long-term Medicaid in Florida, such as nursing home or assisted living care, the applicant must not have given away assets within 5 years of applying for Medicaid benefits. Any gifts or transfers of assets made greater than 5 years of the date of application are not subject to penalties.

Medicaid services in Florida are administered by the Agency for Health Care Administration. Medicaid eligibility in Florida is determined either by the Department of Children and Families (DCF) or the Social Security Administration (for SSI recipients).

In Florida, Medicaid can be used to pay for an elderly relative’s nursing home, assisted living facility, or in-home nursing care. Medicaid pays a fixed daily rate to cover costs such as a patient’s room, meals, staff care, and medical supplies, for the remainder of their life.

In Florida, most Medicaid recipients are enrolled in the Statewide Medicaid Managed Care program. The program has three parts: Managed Medical Assistance, Long-Term Care, and Dental.

The most popular question that arises is -can Florida Medicaid (or AHCA) take one’s house? The basic answer is “no.” If one dies and their home goes to their heirs-at-law (i.e., family members) then the state of Florida cannot take their homestead real property. HOWEVER, Florida Medicaid does have a pay-back provision, just like all states. During one’s lifetime, if they received Medicaid benefits and if they die after age 55, the State of Florida is a creditor in their probate estate.

One of the other biggest concerns is often, “Will the nursing home take my house?” The short answer is no. A nursing home does not take houses. However, there are circumstances where selling the house may be the only way to get the funds to pay for the care that is needed.

Since Medicaid is a needs-based program, this 5-year rule is designed to ensure that applicants need government assistance and did not just position themselves to receive Medicaid benefits just before applying.

To qualify, a single individual over the age of 65 (or disabled), who needs home-health aide, assisted living facility or skilled nursing home Medicaid benefits, he or she can have no more than $2,000.00 in what are considered countable assets for Medicaid.

Exempted assets include personal belongings, household furnishings, an automobile, irrevocable burial trusts, IRAs in payout status, and one’s primary home or residence. For home exemption, the Medicaid applicant must live in it or have the intent to return, and in 2022, have a home equity interest no greater than $636,000.

Effective January 1, 2022, the applicant’s gross monthly income may not exceed $2,523.00 (up from $2,382.00). The applicant may keep $130 per month for personal expenses. However, even having excess income is not necessarily a deal-breaker in terms of Medicaid eligibility.

The most common example of a non-exempt transfer is a gift of an asset to a friend or family member within the prior 60 months of applying for Medicaid benefits.

If an applicant is found to have made a non-exempt transfer during the previously mentioned look-back period, the State of Florida will impose a penalty of ineligibility based on the amount of money that was transferred away.

The length of the penalty of ineligibility is calculated by dividing the amount of money that was given away by the average monthly private-pay nursing home facility cost.

Therefore, to protect a prospective applicant’s assets legally and ethically before the look-back period, an individual must ensure their estate plan is in order and create an Irrevocable Trust for Medicaid purposes, which if done properly, allows protection for both principal and income while allowing the applicant to still qualify for Medicaid long-term care. Several ways to protect money from Medicaid include, but are not limited to, an Asset protection trust, in that Asset protection trusts are set up to protect wealth, Income trusts, Promissory notes and private annuities, Caregiver Agreements or Personal Service Contracts and Spousal transfers, among others.

Assets are not protected from Medicaid in a Revocable Trust because a person retains control of them. The primary benefit of a Revocable Trust is that one can name a beneficiary who will receive payouts from the trust after death without the need of a probate proceeding.

If one is healthy and not looking to receive long-term care in the immediate future, there are several steps that can be taken to better prepare for future needs. Once again, ensure that an estate plan is in order and that a Will and/or Trust is up to date. Further, other needed documents include a valid Durable Power of Attorney (for financial matters), Healthcare Surrogate (medical power of attorney) and Living Will/Advance Directive. An individual can also create an Irrevocable Trust for Medicaid purposes, which if done properly, allows for the protection of both principal and income while allowing the applicant to still qualify for Medicaid long-term care. An individual can obtain long-term care insurance coverage as well. Some private insurance carriers provide options for this type of insurance, but the applicant typically must be healthy at the time of purchase for them to be covered. Financial advisers recommend the optimal age to inquire about a long-term care policy, assuming one is still in good health and eligible for coverage, is between 60 and 65. Couples might consider looking into it 5 years earlier.

The foregoing is just a brief overview or review of the subject described.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

Accidents can occur anywhere. While on vacation, a significant injury might be sustained on a cruise. It is estimated that more than nine million passengers travel on pleasure cruises departing North American ports each year. It has also been reported that, since 2016, there has been an upward trend of accident or negligence cases against cruise lines and that personal injury cases against the three biggest cruise lines, i.e., Carnival, Royal Caribbean Cruises Ltd., and Norwegian Cruise Line Holdings accounted for 78 to 87 % of all federal litigation they faced over the past five years.

Common causes of cruise ship injuries, include ship collisions, technical problems, passengers falling overboard, assaults by crew members, food poisoning as well as slip and fall incidents. These acts of negligence can lead to serious injuries such as broken bones, concussions, and internal organ damage. In the event of injury or wrongful death, one can bring a claim or lawsuit against Carnival, Royal Caribbean, Norwegian, or Celebrity Cruise Lines.

First, it is important to clarify that when a person purchases a ticket and boards a cruise ship, they automatically accept the cruise line’s contract. One can typically find this contract in the fine print on the bottom of their ticket. By making the purchase and boarding the ship, an individual legally consents to the terms of the cruise line. This liability waiver can bar injured parties from pursuing certain claims against the various cruise lines. It can also list important claim information, such as deadlines for filing. The contract may state something like, “the cruise line is not liable for any personal injury, illness, or death unless negligent.”

It is also important to know that the contract does not protect the cruise line from every personal injury claim. It is only those that the carrier or cruise line employees had not caused or to which they had not contributed. If one believes the cruise line or one of its employees is guilty of negligence or intent to harm, their case will circumvent the stipulations of the ticket purchase. Otherwise, the subject cruise line on which a person traveled would be free to cause harm or conduct business negligently without fear of legal repercussions. An example would be if the injury was entirely the passenger’s fault or due to their own carelessness, then they will not have a case. Various resulting injuries for which a passenger cannot sue include, but are not limited to, if you drank too much alcohol and tripped down the stairs; if you were fooling around in an area blocked off to guests with proper signage; or did not follow proper instructions and fell, etc.

On the other hand, the type of cruise injuries one can make a claim or sue for are torn carpeting which caused a fall; loose handrail caused a tumble down the stairs; and proper signage was not used to alert guests to avoid an area or use caution. In the foregoing, one might have a premises liability lawsuit against the carrier for failing to properly maintain the cruise ship.

A cruise line lawsuit may also have a foundation in the legal theory of negligence. For instance, this might be the case if the ship’s cook failed to properly refrigerate fish, leading to an outbreak of food poisoning.

A cruise ship owes its passengers a duty of safe transportation. Passengers who are injured aboard a ship may file lawsuit against: the owner of the cruise ship; the company that chartered the cruise ship; the company that operated the cruise ship, and/or the Company that sold the ticket as an agent of the cruise ship owner, charterer, or operator. Each of these claims may be subject to cruise ship laws which affect where and when the passenger may file suit.

The initial hurdle is that personal injury claims against a cruise line company usually require passengers to file them in the same state of the company’s headquarters. In the alternative, there other forum selection clauses. These provisions, also contained in the ticket package, dictate where a lawsuit may be filed against the cruise line. It does not matter where the passenger is from, or where the cruise departed. Currently, cruise lines have limited the location where claims may be brought to a handful of cities where larger ports are located, such as Miami, Seattle, and Los Angeles. This can be an issue for people that live elsewhere, and with many major cruise lines based in Florida such as Royal Caribbean, Celebrity, Carnival, and Norwegian Cruise Lines, or the location designated to bring a lawsuit may be Miami, then a Florida based attorney may be in the best position to represent the injured party and litigate these claims.

Further, most cruise lines also have a notice requirement. That means, if you want to sue them, you must give them formal written notice of your claim within a specific period, usually just a couple of months after the injury or illness is sustained. For injuries occurring due to negligence associated with a cruise line, the contractual provisions typically call for a limited timeframe. More specifically for injuries or deaths stemming from negligence associated with a cruise ship, the contract, which is usually contained in the ticket package, typically provides that a passenger must provide notice of a claim to the cruise line within six months and commence a lawsuit within one year.

Therefore, an added hurdle is that cruise ship accident lawsuits carry a one-year statute of limitations. This limited timeframe combined with the need to file in the same state of the company’s headquarters can create an incredibly tight, inconvenient, and often expensive litigation process for out-of-state passengers injured in a cruise ship accident.

Bringing a lawsuit against a cruise line for onboard injuries requires a different process from personal injury claims on land. Cruise ship injuries involve elements of maritime law, a distinct body of law which governs offenses and activities on water vessels. There are also different filing deadlines and liability concerns one must consider.

Regarding non-physical injury claims, cruise lines impose a shorter limitation period. Most cruise lines require that written claims be filed within days as opposed to months after the accident. Courts may decide not to enforce these limitations if they were unreasonable under the circumstances or contrary to a state statute of limitations.

Maritime laws require plaintiffs to prove fault. A common carrier owes the highest degree of care to its passengers. However, unlike typical strict liability cases, passengers must prove negligence or intent to harm to bring a claim against said cruise line. This involves having evidence of the cruise line’s failure to exercise due care thereby resulting in injury.

As a common carrier, or a vessel that carries passengers for money, cruise ships must obey certain common carrier laws. These laws and rules include providing: adequate fire protection; competent crewmembers; safe and sanitary food services; firefighting and lifesaving equipment; stable watercraft; safe navigation; vessel control; environmental protection; protection from physical harm; safe arrival at the destination; protection from crewmember assaults and/or reasonable search and rescue for missing passengers, among others.

Passengers who sustain injuries due to negligence or intent to harm may be able to recover compensation for their medical bills, pain and suffering, lost time at work, and other damages.

At the time of an accident and shortly thereafter, gather as much information as possible about what happened, such as statements from people who witnessed the incident, names of cruise ship staff members on the scene, photographs of anything relevant to your claim and any other relevant details that may be helpful in the potential case.

If one must go to the onboard hospital for treatment of injuries sustained, then have a friend or family member gather medical as well as other relevant information. As expected, it is vital to record details of the subject incident while they are still fresh in one’s memory.

You must file your lawsuit at the cruise line’s headquarters or as designated on the ticket. Despite being highly inconvenient for passengers who live out of state or even in a different country, cruise ship liability waivers state that injured passengers must file claims in the state of the company’s headquarters or as otherwise designated. In addition, Cruise ship lawsuits are often subject to a one-year statute of limitations. This means that a cause of action must commence within one year or the passenger loses their right to pursue compensation.

Probably, the key factor in a case against a cruise line is the ability to prove negligence. This factor hinges on the court ruling that a “reasonably careful ship operator” would have done something different in the same situation, such as knowing about a faulty staircase railing and taking steps to repair the issue. Although it is impossible for a cruise line company to foresee all dangerous conditions, they have a duty to reasonably prevent harm to passengers.

Finally, report the accident and injuries to the cruise line as soon as possible, not only to receive a possible refund but also to have documented proof that the incident occurred and that it was reported to authorities in a timely manner. Keep a record of the employees or representatives with whom one speaks, what he/she said, and how the cruise line responded to the subject incident and injuries.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs and after to discuss the details of your case!!