CRIMINAL ACTIVITY including, assaults, batteries and shootings can happen anywhere, such as shopping centers, bars, gas stations, and school campuses, among others.

Florida is currently ranked third in the United States for the number of mass shootings, however, such shootings usually involve just one or two victims. While the shooter is certainly responsible for the attack, property owners and managers may have some legal liability, fault, or negligence (breach of duty) if they failed to provide adequate security for patrons, visitors, and/or guests.

When a shooting occurs, it is common for a lawsuit to follow, usually against the owner of the property or even a security company or event organizer. This situation is due to property owners owing a duty of care under Florida law. If an individual or family has been the victim of a shooting on someone else’s property, they may have a claim against the property owner if said property owner were negligent in protecting guests and customers and had reason to foresee the potential for a shooting.

How is it determined if a crime was foreseeable? Determining whether a crime was foreseeable is dependent upon many factors, including:

• If similar crimes have happened in the past at the property or similar types of property;
• The crime rate in the area-using GRIDS; and
• If the perpetrator of the crime was a known potential threat.

While criminal activity including shootings can happen anywhere, common places for shootings as well as other crimes where an injured party might be able to sue the premises owner include: Parking lots; Commercial building; Apartment complexes and condo buildings; Retail stores, shopping centers, Strip malls, Mini malls; Outside a bar; Convenience Store; School and Childcare facility; ATM; Storage facility; Grocery store; Casino; Laundromat; Sporting events; Office building; Amusement park; Nursing home; Airport; Church; Restaurant; Concert venues and theaters; Hotel; Hospital; and Government facility.

GRIDS can help in proving fault or liability on the establishment or property owner. Specifically, for negligence cases, including negligent security, obtaining police Crime Grid Reports help plaintiff lawyers’ ability to satisfy their burden of proof. In general, a Crime Grid Report is a spreadsheet or database which tracks crime or criminal incidents in a particular area. Additionally, this spreadsheet separates each incident by the type of crime allegedly committed in a particular area. While each area tracks and documents such incidents differently, every Grid report can provide helpful information to prove a negligent security case.

Who can sue for a death caused by criminal activity? Not everyone can recover damages after losing a loved one in a shooting or other criminal activity in Florida. Usually, only the following can sue in a lawsuit for a death caused by criminal activity, include: Spouse; Children under 25; Children over 25 if there is no surviving spouse; Parents if there are no other survivors; and Financially dependent blood relatives if the dependence was quite significant (as in the case of someone with a total disability).

Premises liability is an area of law in Florida which allows property owners and managers to be held responsible or liable for injuries and crimes that occur on their property due to unsafe conditions or negligent security.

Under Florida law, property owners owe a duty of care to residents, guests, and/or customers to maintain a safe property free of hazards and conditions that encourage or allow crime to occur.

This duty of care owed by a property owner is limited. Property owners are not required to warn visitors about obvious hazards nor are they expected to protect guests and customers from unforeseeable risks that require unreasonable protection. For instance, a property owner cannot be expected to predict a hurricane, nor can they foresee and plan for all types of crime.

When certain elements are met, however, property owners can be liable for a criminal activity which occurs on their property.

Premises liability cases are particularly difficult, but there are cases in which a property owner can be legally liable for a crime committed by a third party on the subject property. In most cases, these claims involve negligent security.

Proving a premises liability case involving a crime requires proving:

• The premises owner owed a duty of care to the victim. Trespassers are owed the least duty of care while customers are owed the highest duty;
• The duty of care was breached. In the case of a crime, this usually means the owner did not provide adequate security and should have foreseen that a violent crime could occur;
• The breach of duty led to the injury; and
• The victim suffered damages in the said crime or criminal activity.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

There are valid reasons to make an adequate and accessible record of one’s retirement accounts. After death, an individual’s survivors will want to file claims for any outstanding benefits, and if said individual ever becomes incapacitated prior to death, the person in charge of their finances will have to manage those accounts for the subject individual.

To make these tasks easier for one’s loved ones or family members, a person should keep a list of basic information about their retirement accounts, pension plans, and Social Security benefits, etc. There are some essential guidelines on what may happen to retirement benefits after death.

Each of one’s retirement accounts and pension plans should specifically name a beneficiary, rather than using a Last Will & Testament to name beneficiaries for the retirement plans. Money remaining in the accounts at death, as well as any pension payments due to the deceased owner, will pass directly to the beneficiaries named or designated, without the complications, inconvenience, and expense of a Probate Administration in the court system.

For some plans, including 401(k)s and most pension plans, the law requires a person to name their spouse as beneficiary unless he or she signs a form giving up that right. For IRAs and employer profit-sharing retirement plans, one may name any beneficiary they choose. If they live in a community property state, such as California, however, one must be aware that a spouse has a legal right to half of the money that the other spouse earned during marriage. If a person is married and does not want to leave all retirement benefits to their spouse, one should seek the advice of an attorney to ensure they know the applicable laws, rules, or regulations.

If one has created a living Trust to avoid Probate, it is generally not wise to name the Trust as the beneficiary of the retirement accounts. Retirement funds are already exempt from Probate, and by naming a Trust as beneficiary, inheritors (individual heirs or beneficiaries) are likely to lose some of the benefits and flexibility they would otherwise have.

After death, a person’s family may be entitled to Social Security survivor benefits. Eligible family members will receive monthly payments, i.e., as much as the full retirement amount that would have been paid to the deceased party.

A spouse of a deceased party qualifies for benefits if he or she is:

• at least 60 years old, or
• at least 50 years old and disabled, or
• any age, if he or she is caring for your child, and the child is under age 16 or is disabled and receiving Social Security benefits.

A deceased party’s unmarried children are entitled to survivor benefits if they are:

• under the age of 18, or
• between 18 and 19, but attending elementary or secondary school full time, or
• age 18 or older and severely disabled, with a disability that started before age 22.

Other eligible survivors may include a deceased party’s dependent parents, divorced spouse, stepchildren, and grandchildren.

In addition to ongoing survivor benefits, a surviving spouse or minor children may also be eligible for a one-time payment of $255 upon an individual’s death. For additional information, review the Social Security website at www.ssa.gov .

It should not take long to make a record of one’s retirement plans and accounts. Taking a little time to do it now may save a person’s loved ones and/or family members a great deal of trouble later.

At minimum, one should make a list of every plan that they have, whether or not it pays benefits now, or expect benefits in the future. Remember to include:

• employer-sponsored plans or pensions,
• IRAs (traditional, Roth, SIMPLE, or SEP-IRAs), and
• Keogh, profit-sharing plans, or self-employed 401(k)s for small business owners.

For each account, list the following information:

• the name of the managing organization or financial institution,
• the account or identification number,
• contact information for the account manager or adviser (if any),
• whether or not one is currently receiving benefits, and if so, how much, and
• the location of the plan statements.

An individual should also list and describe their Social Security benefits, including those based on their earnings (or disability) that go to one’s family members as well as those they expect in the future.

It is crucial to review one’s list of accounts and benefits periodically. Update records if a person acquires or terminates a plan or changes the location where one files their plan statements.

Distinct items of a person’s retirement information may be sensitive, so an individual should want to file their list in a secure location, such a locked cabinet or fireproof safe at home or bank safe deposit box. However, it is critical to advise those persons closest to them where the information is located and how to access it. Most importantly, if one has named a Personal Representative or Executor in a Last Will & Testament or an Agent under a Durable Power of Attorney for financial matters and/or under a Healthcare/medical power of Attorney, be certain those designated individuals can locate, ascertain, or access this vital information when needed.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Many people in the United States observe Labor Day as a time off from work, an opportunity to enjoy a backyard barbecue with friends and family and a final festive occasion of Summer prior to a busy Fall, i.e., getting back to school and work as well as holiday season.

The public should remember the work of those in the labor movement who fought for workers’ rights and also celebrate the essential role workers play in America’s growth and development.

Historically, the Labor Day holiday began with a heated campaign by workers in the late 19th Century to win support and recognition for their contributions.

Labor Day traditionally is celebrated on the first Monday in September.

There are two versions as to the origins of the holiday. One version is set in September 1882 where the Knights of Labor, the largest and one of the most important American labor organizations at the time, held a public parade in New York City on September 5^th, featuring various labor organizations with the aid of the fledgling Central Labor Union (CLU) of New York. Subsequently, CLU, Matthew Maguire, proposed that a national Labor Day holiday be held on the first Monday of each September to mark the previously mentioned successful public demonstration.

In another version, Labor Day set in September was proposed by Peter J. McGuire, a vice president of the American Federation of Labor. In spring 1882, McGuire reportedly proposed a “general holiday for the laboring classes” to the CLU, which would begin with a street parade of organized labor and end with a picnic fundraiser for local unions. McGuire suggested the first Monday in September as an ideal date for Labor Day since the weather is good because of the time of year, and it would fall between the July 4^th celebration/holiday and Thanksgiving Day. The state of Oregon became the first U.S. state to make it an official public holiday. Twenty-nine (29) other states had joined by the time the federal government declared it a federal holiday in 1894.

Ultimately in July 1894, President Grover Cleveland signed into law legislation creating a national Labor Day holiday in early September. This signing was done while federal troops in Chicago crushed a strike by railroad and Pullman sleeping car company workers, leaving some thirty people dead.

The federal law, however, only made it a holiday for federal workers. As late as the 1930s, unions encouraged workers to strike to make sure they got the day off. All U.S. states, the District of Columbia, and the United States territories have subsequently made Labor Day a statutory holiday.

Worldwide, Communist and Socialist factions chose May 1st as the date to mark the Haymarket affair. A 1904 conference issued a plea that trade unions stage rallies on the first day of May and demanding to make the eight-hour workday a standard. They organized the action in the name of “universal peace.”  The 1st of May is a national, public holiday in many countries across the world, generally known as “Labour Day,” “International Workers’ Day,” or a similar name, although a number of countries celebrate a Labor Day on other dates significant to them, such as Canada, which celebrates Labor Day, like the U.S., on the first Monday of September. The Haymarket affair occurred on May 4, 1886, during a period of time when most American laborers worked eighteen (18) to twenty (20) hours per day. Tens of thousands of workers protested in cities across the U.S. to demand an eight-hour (8) workday. Police in Chicago attacked protesters, beat, and shot at the group and killed six. When outraged Chicagoans attended an initially peaceful protest the next evening in Haymarket Square, police advanced on the crowd again. An unidentified person detonated a bomb which killed a police officer, leading the police to open fire on the protesters and provoke violence that led to the deaths of about a dozen workers and police.

Consequently, the Labor Day holiday was and is meant to be a day that the citizens of the United States recognize and celebrate the contribution, achievements, and dedication of the working class. It is a way of thanking, acknowledging, and paying tribute to all the contributions American workers have made to the growth and develop of the nation since the Industrial Revolution of the 1800s.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

A Power of Attorney which was validly created in another state is valid in the state of Florida. However, many out of state Powers of Attorney do not comply with Florida law. Individuals using these documents in Florida on a regular basis should have them updated by creating Florida compliant instruments. This article will explore why someone who moves to Florida should update an out of state Power of Attorney and provide some options if a third party or financial institution denies the out of state Power of Attorney as well.

The Power of Attorney is an extremely important and valuable document which allows a selected third party (or multiple third parties) to manage one’s property and financial affairs as well as make healthcare decisions. This third-party Agent can manage bank accounts, sell or buy property on the Principal’s behalf (i.e., the one who created the power of attorney and who authorized the Agent to act on his/her behalf), move around investments, decide how assets should be used for the Principal’s benefit, and make a number of important decisions about one’s finances or medical care.

Since the Power of Attorney is such an important document, it is highly scrutinized by financial institutions and other third parties. Financial institutions in Florida often deny out of state Powers of Attorney because they do not contain “super-powers,” or the Power of Attorneys are a few pages long and just grant extremely broad powers to the Agent listed in Power of Attorney.

The Florida Power of Attorney laws changed significantly in 2011. The most important change was that the new Florida Power of Attorney laws created what is known as the super-powers. These super-powers are powers that the state legislature considered so important that each super-power must be clearly expressed in the Power of Attorney and the Power of Attorney creator or Principal must place their initials next to the super-power provision or paragraph.

Even if a super-power is expressly stated in a Power of Attorney, but it is not initialed, then the Agent of the said Power of Attorney will not be able to perform that super-power on behalf of the subject Principal. This situation becomes extremely important when an individual no longer has capacity to update their Power of Attorney, then a Legal Guardianship (an expensive and time-consuming legal proceeding) must be started so that the Agent of the said Power of Attorney can perform that super-power.

The following is a brief list of some super-powers designated by the Florida Statutes that a person must sign or initial next to the applicable provision or paragraph for the Agent of the said Power of Attorney to exercise these powers:

• Create an intervivos trust (also known as a living trust or a revocable trust).
• Amend, modify, revoke, or terminate a trust.
• Make a gift.
• Create or change rights of survivorship.
• Create or change a beneficiary designation.
• Waive the Principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor annuity, including a survivor benefit under a retirement plan.
• Disclaim property and powers of appointment.

Consequently, what does all this mean and how does it affect a person’s life in Florida? It is rarely seen that an out of state Power of Attorney document which had these powers listed requires the creator or Principal to initial or sign next to each power. This would mean that if an Agent of the Power of Attorney had to create a trust on the Principal’s behalf here in Florida, the Agent under the said Power of Attorney would not be able to do so because the subject out of state Power of Attorney document does not have the Principal’s initial or signature next to the applicable provision authorizing the said trust power provision.

The following is an example of how an out of state Power of Attorney might complicate a person now residing in Florida: An individual’s parent is incapacitated and needs to be placed into a nursing home in Florida. The nursing home cost about $9,000 to $10,000 per month. The Agent hires an attorney to do Medicaid planning for the parent so that they can try to preserve all the parent’s remaining assets or life savings and not spend it down after a year in the nursing home.

The first thing to be requested is a copy of the parent’s Power of Attorney. Said parent most likely has a typical 4-5 page out of state Power of Attorney which was prepared

several years prior to the parent’s incapacity and move to Florida. Said parent is slightly over the income limit for Medicaid, and what is required to be created is a Qualified Income Trust so that the parent can qualify for Florida Medicaid.

Due to the out of state Power of Attorney not having the subject parent’s initials or signature next to the provision, paragraph, or power to create a trust, the attorney and family have to establish a legal Guardianship, which cost can average between $8,000 to $10,000 just to establish in order that the Agent can just set up the aforesaid trust and salvage the parent’s assets from the nursing home.

FURTHER, a third party can reject an out of state Power of Attorney in Florida within a “reasonable time.” This term customarily means four (4) business days for financial institutions or banks. The third party must provide a written statement explaining their basis or reasons for denying the Power of Attorney. A third party can also request an Affidavit from the Agent of the subject Power of Attorney stating that the Power of Attorney is still in effect.

If a third party or financial institution denies an out of state Power of Attorney in Florida, then the Agent of the Power of Attorney can sue the third party to force the third party to comply with, follow and/or accept the Power of Attorney. The third party can be liable for damages, including court costs and attorney’s fees, if the Agent for the subject Power of Attorney prevails in the lawsuit.

However, lawsuits cost a substantial sum of money and take considerable time. If an Agent under a Power of Attorney needs to act quickly (e.g., sell property or do Medicaid planning), then a lawsuit is not very practical. The best alternative is usually to have the creator or Principal of the Power of Attorney sign and execute a new Florida Durable Power of Attorney so that the Agent can act immediately. This option will only work if the creator or Principal of the Power of Attorney still has the legal capacity to sign and execute a new Florida Durable Power of Attorney.

If the creator or Principal of the Power of Attorney is no longer competent, then an experienced Florida Estate Planning or Elder Law attorney may have some success with the third party’s legal department or management team to try to convince them to accept the out of state Power of Attorney. This process can be more effective if the out of state Power of Attorney complies with Florida state law.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

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!!

A Memorandum as To Disposition of Tangible Personal Property is a document made part of a Last Will & Testament and makes specific gifts of the deceased’s or testator’s tangible personal property to take effect at death and can be handwritten by said person without the need of an attorney’s assistance. As stated therein, the Memorandum shall have no significance apart from its effect on the disposition of the subject individual’s property by the aforementioned Will and shall be attached to and kept for safekeeping with such Will. The person creating the Will expressly reserves the right to revoke or alter the Memorandum at any time prior to death and does not intend by this Memorandum to create any rights, whether by anticipation or otherwise, in any of the persons mentioned herein as testamentary donees or beneficiaries of the subject individual’s property. In other words, it is a supplemental document that must be referenced in the Will or living trust and allows one to specify the items of personal property they wish to leave to loved ones. A properly prepared personal property memorandum will be specifically referenced in one’s trust or Last Will and will be prepared in the testator’s own (preferably legible) handwriting and signed. It could be typed as well. No witness or notary signatures are required. The memorandum can be revised, amended, or replaced as often as the testator desires.

The role of this document in Florida Estate Planning is to reduce the risk of family conflict by preparing a personal property memorandum as a supplement to one’s Will. A personal property memorandum, which is merely a signed list identifying specific items and intended recipients, provides a means of clearly describing who gets what. In doing so, the memorandums become an important safeguard against estate or family conflict.

When it comes to preparing a personal property memorandum in Florida estate planning, one cannot just write out a list of whom a person wants to receive particular items and expect it to be enforced by a Florida probate court. A personal property memorandum needs to satisfy certain requirements set forth by statute, Fla. Stat. §732.515.  One first needs a valid Florida Last Will & Testament (or trust instrument), which mentions one’s intention to create and incorporate a separate list of tangible personal property. The said memorandum or list can be the last page of the Will or trust or a separate document.

In order to be effective, a personal property memorandum must be signed by the testator (i.e., the individual whose Will is being supplemented). Florida’s personal property memorandum statute does not technically require the list to be dated, but dating is a better idea, as it tends to avoid confusion if the list is amended or revised later. More importantly, a personal property memorandum must also identify with reasonable certainty the items to be distributed and the individuals who will receive them. One needs to ensure each individual item and beneficiary can be readily identified without any further explanation.

One of the biggest advantages of using a MEMORANDUM AS TO DISPOSITION OF TANGIBLE PERSONAL PROPERTYis that it can be amended without going through all the formalities for creation of a Will or codicil. Consequently, if a person acquires new personal property or transfers existing property (or just changes their mind about the disposition), they can alter or revise the memorandum later on. In the alternative, they can just write up a new memorandum to supersede an earlier version, which is one of the reasons it is important to date the document.

However, if the actual Last Will and Memorandum both happen to include the same item, the Florida Probate Code says that the subject Will takes precedence even though the Memorandum was created later.

In Florida (as well as most other states that allow them), these memorandums can only be used to distribute “tangible personal property.”  Therefore, their use excludes real estate since real estate is not personal property. â€œTangible” means things that you can hold or touch, i.e., trinkets, antiques, clothing, jewelry, furniture, musical instruments, possibly firearms, and possibly pets.

HOWEVER, one may not be able to simply give a beneficiary a firearm as stated in a Will. There are situations in which their taking possession of the firearm or gun would be illegal, such as if they are a convicted felon. The same can be said for the personal representative’s or executor’s possession of the firearm. The personal representative is not exempt from the law, because they are acting on behalf of an estate. If one is not entitled to possess a gun, then speak with a specialized attorney with experience in firearms immediately about ensuring the firearms are stored in a lawful place during the probate process. As a personal representative, carefully review the decedent’s estate planning documents, including whether they have a gun trust, and speak with an experienced probate attorney before doing anything with the decedent’s firearms. Numerous federal and state laws regulate the sale or transfer of firearms, making the gifting process complicated. One cannot convey a gun improperly or to an unlawful recipient, which may violate the law. Further, if the decedent did not plan for how their guns were to be handled, the personal representative will need to know how to dispose of them properly and legally. The foregoing requires a more in-depth discussion, which may be dealt with at a later time.

On the other hand, â€œintangible” property cannot be distributed using a personal property memorandum. Accordingly, items such as bank or investment accounts, securities, insurance policies, and intellectual property are excluded. Also, cash does not qualify as “tangible” personal property. Promissory notes or other evidence of indebtedness do not qualify as well.

Another exception built into Florida law applies to property “used in business or trade,” which is not eligible for inclusion in a personal property memorandum. Said regulation means that certain items might be includable in one context but not in another. Tools you keep in the garage for household projects can probably be included in said memorandum, but those same tools might be ineligible if you use them in a business endeavor.

One of the most valuable personal property items that most people own, i.e., motor vehicles, should not be listed in the subject memorandum. The reason being those motor vehicles have certificates of title, and a vehicle’s title is what determines who owns it. Again, since a vehicle or boat has a certificate of title, it would be preferred to include said items in the Last Will or a Florida revocable trust.  When the time comes, the personal representative or trustee signs over the title to the beneficiary. One can arrange to transfer an asset outside Florida probate through some type of joint ownership with a right of survivorship.  When an asset is jointly owned with a right of survivorship, full title or ownership automatically vests with a surviving co-owner upon the other owner’s death.

Even if there is no title, one can better dispose of particularly valuable personal property through a Will rather than the aforesaid memorandum even though the subject item qualifies as “tangible personal property.”  An attested Will provides more certainty and is less susceptible to ambiguity or tampering than a Memorandum, which can be informally revised. Therefore, if a person’s estate includes heirloom jewelry, for example, which might be considered expensive, it might be preferable to address it within the actual Will. If one is unsure whether an item is appropriate for a personal property memorandum, one should discuss it with an experienced Florida estate planning attorney.

A Florida personal property memorandum does not need to be a sophisticated legal document. A memorandum should have a brief description clearly identifying the document’s purpose, the date and the testator’s signature, and a list of items and beneficiaries. Each item needs to be described with certainty and beneficiaries should be sufficiently identified including the full legal names of recipients to eliminate any confusion. 

One of the primary purposes of any estate plan is to avoid family conflict.  Most estate plans adequately address large assets, but the smaller personal items may cause conflict. In Florida, incorporating a memorandum of personal property into the Last Will & Testament, which distributes tangible items with sentimental or some economic value, and which may not be included in the Will itself, is an effective way to avoid future battles among family members.

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

“Bad Boy” or “Bad Girl” Clauses a/k/a Moral Turpitude Clauses or Infidelity Clauses in Prenuptial or Marital Agreements have been gaining popularity in recent years.

            In essence, these clauses serve as a tool to dissuade a spouse from engaging in certain types of behaviors or activities during the marriage, such as  adultery, gambling, excessive drinking, and the like, which would financially penalize a “bad” or offending spouse in the event of a divorce through the unequal distribution of marital property, such as amount of alimony, or waiver of certain rights that the “bad” spouse would have otherwise received, but for the agreed-upon inappropriate conduct.  

            Unfortunately, there is not a lot of case history on the topic in Florida, and therefore, it is difficult to assess what a court is likely to do when such penalty clauses exist in a prenuptial agreement, especially when such clauses may be drafted in such a way that would be contrary to Florida Law and public policy at the time of a divorce.   It is important to note that Florida is a no-fault divorce state, and a spouse initiating a divorce proceeding must merely show that the marriage is irretrievably broken, i.e., the marriage is broken beyond repair, and there is no chance of getting back together with one’s spouse. “No-fault” means fault is not usually considered when making decisions about the terms of a divorce. Property is divided and alimony is awarded, regardless of a spouse’s behavior during the marriage. Consequently, “Bad” spousal conduct does not necessarily come into play in the dissolution of marriage action, unless a party has engaged in dissipation of marital assets or waste, but Florida’s equitable distribution statute resolves the issue when awarding unequal distribution or designation of marital assets and liabilities in favor of one spouse for such waste.

            While Florida does respect the freedom of individuals to form contracts and enforce prenuptial agreements, agreements cannot violate public policy and may be deemed unenforceable, such as waiver of temporary alimony or attorney’s fees. It is therefore important to consult an experienced family law attorney for your specific prenuptial needs to avoid potential pitfalls in your Agreement.

            If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI.