Most Florida residents do not know that Medicaid for the elderly is merely a type of loan to pay for their long-term care needs and is not a gift or grant. The basic point is that if a Florida resident is on Medicaid, any remaining assets the decedent owned upon their death is subject to a lien by the state of Florida. This is commonly known as the Medicaid pay-back or reimbursement provisions, and many residents are unaware of this provision in the law.

Florida Medicaid does have a pay-back provision, similar to other states. During one’s lifetime, if they receive Medicaid benefits, and pass away after the age of 55, the State of Florida is a creditor in their estate. The state has a claim in the amount of funds expended to the deceased party’s benefit during their lifetime, which can definitely be a great deal of money if the subject individual spends time in long-term care. HOWEVER, this situation may not generally be much of an issue in most situations.

First, if the Medicaid applicant was single, he or she was only allowed to have less than $2,000 in countable assets in order to be on Medicaid. This scenario means that the applicant likely has nothing for Medicaid to make a claim against upon the applicant’s death. A single applicant, who is already impoverished, generally has nothing for the state of Florida to take.

Further, even if the decedent owned a homestead real property or primary residence, this property is not subject to creditor’s claims (including the state of Florida) in most circumstances.    There are exceptions to this rule though, such as:

• The decedent’s property lost its homestead status before death (possibly by renting the home, as an example);
• Not all homestead properties are equal. If the property is a co-operative share, such as in a mobile home park, this does not get statutory protection for Florida homestead purposes; and/or
• The decedent’s Last Will & Testament called for the sale of the decedent’s home.

Consequently, the Medicaid lien is not an issue in most circumstances. Therefore, where would a Medicaid lien take place?  There are a few circumstances where the lien could/would be applicable:

• The decedent sold their home and went off of Medicaid before death (i.e., the applicant went on private pay);
• The decedent received an inheritance, either before they died or after, which could then be subject to the lien;
• The decedent did not disclose or discover all known assets as part of the application process and the assets had to be probated upon death; and/or
• The decedent’s spouse died first and left money to the Medicaid applicant, who then passes away.

One major point to be made is that proper estate planning can avoid any potential Medicaid lien. That result is one reason to see an experienced estate planning attorney in order to ensure the family creates a good estate plan with the necessary documents to help avoid probate as well as creditor problems upon the family member’s death.

Accordingly, the Medicaid lien is not a worry for most Medicaid applicants if they either have nothing or very little at death or have created a good estate plan. This situation also merits good asset protection planning which can protect assets during one’s lifetime and at their death.

The foregoing is just a general and brief overview of the subject of Florida Medicaid’s lien & its pay-back or reimbursement in the state of Florida.

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.

Beneficiary Designations as well as a Lady Brid Deed takes precedence or priority over a Last Will & Testament as well as a Trust, which means that if one gets divorced and remarries, but does not update their beneficiaries on accounts, a former spouse may be the legal heir to those accounts if you named them the beneficiary while married. Trusts control the trust estate, the assets that are placed within their ownership and titled in the trust name. They do not overlap and therefore cannot supersedeother designations.

A Last Will or living trust do NOT override the beneficiary designations for life insurance policies, retirement accounts and other types of investment or bank accounts. This includes accounts, such as life insurance policies, annuities, IRAs, other tax-favored retirement accounts and employer-sponsored benefit plans. The person(s) named on the most-recent beneficiary form will get the money automatically if one dies, regardless of what the Last Will or living trust document might state.

Deeds such as a Lady Bird with its Remaindermen (i.e., like designated beneficiaries but for real property) or ownership by the Entirety as a married couple and/or joint tenants with right of survivorship, the surviving spouse will automatically get sole ownership of the property when the other spouse dies and/or the property automatically goes to the surviving joint tenant or Remainderman.  The major advantage of these types of ownership is that they avoid probate.

Most beneficiary designations will require one to provide a person’s full legal name and their relationship (i.e., spouse, child, mother, etc.). Some beneficiary designations also include information like mailing address, email, phone number, date of birth and Social Security number.

An estate plan in Florida can include several documents, many of which may require beneficiaries, like any trusts, a person may have set up or intended to set up, non-probate assets like 401(k), IRA accounts, life insurance policies, and pensions. Assets from these accounts will go to the beneficiaries upon the owner’s death. It is important, therefore, to make sure one chooses their beneficiaries carefully. 

A beneficiary designation involves naming the person who will directly receive an asset in the event of the death of its owner. Again, assets which allow for beneficiary designations include insurance policies, retirement accounts such as 401(k) plans, annuities, and other financial accounts. Trusts also need beneficiary designations. An individual can also choose beneficiaries in their Last Will and Testament. 

It must be noted that beneficiaries are different from heirs. Beneficiaries are chosen while heirs are those who inherit the property of a person who dies intestate, or without a Last Will, usually next of kin as governed by state law.

The designation process ensures the named beneficiary directly receives the asset, rather than it passing to the owner’s estate and going through probate, which may involve significant time and expense.

Beneficiary designations are unique to each asset and may be managed by the entity that holds the subject asset.  An example would be a life insurance policy whereby the company that holds the policy will likely provide a beneficiary designation form during the enrollment process. In the said form, the applicant would specify which individuals (i.e., beneficiaries) should benefit from the subject policy in the case of death.

When a person dies, the instructions in their Last Will & Testament only distributes assets included their “probate estate” or in their name alone.  Assets with beneficiary designations get excluded from the probate estate.  To avoid a conflict, it is crucial to ensure that the language in one’s Last Will correlates with and/or considers their beneficiary designations.  It merits to perform a regular review and update of the Last Will as well as beneficiary forms as needed since, typically, a beneficiary designation overrides a Last Will.

Common categories of beneficiaries in Florida include eligible designated beneficiaries, designated beneficiaries, non-living beneficiaries, and contingent beneficiaries. Different eligibility rules may apply to various categories of beneficiaries. 

Eligible designated beneficiaries include:

• Spouses;
• Children under 18 years of age;
• Individuals with a disability;
• Chronically ill individuals; or
• Individuals within 10 years of age of the deceased.

Eligible designated beneficiaries have additional rights to designated beneficiaries. 

A designated beneficiary is any living person who does not fall into the above categories. This may include a friend or extended family members, such as elderly parents or a sibling. 

Another type of beneficiary is a non-living beneficiary, such as a charity, trust, or estate. 

A contingent beneficiary is a “backup” beneficiary to whom receives the asset in the event the primary beneficiary is unable. 

When choosing a beneficiary, the following are key factors to keep in mind.

A beneficiary typically must be over 18 years of age. If an individual wants to gift an asset to a minor upon death, one may need to set up a minor’s trust and name the trust as the beneficiary, if appropriate; otherwise, a legal guardianship will be needed. 

Financial dependents are a good starting point when considering who to designate as a beneficiary. These may include a spouse, children, or other extended family members.

A beneficiary generally must have an insurable interest in the insured person. The foregoing means there must be a legitimate financial interest between the two, such as in the case of dependent children or a spouse. 

Some life insurance policies or pension funds set rules for naming a beneficiary. Make sure to be aware of these before making decisions and seek legal and financial advice about the options. 

Depending on the document and the terms of the contract, some beneficiaries may be irrevocable. The preceding means one cannot revoke said beneficiary’s rights unless they agree to it. At first glance, one may wonder why they even would want to designate beneficiaries as irrevocable, but there are benefits. An estate planning attorney can explain the reasons and situations where irrevocable beneficiary designations may be most appropriate as well as the reverse.

In Florida, the best way to avoid most potential issues when it comes to a beneficiary designation is to speak with a lawyer to ensure the selected designation is valid. 

Some common challenges that may arise when designating a beneficiary are as follows.

When choosing a beneficiary, it is possible to set either a fixed dollar amount or percentage the subject beneficiary will receive. However, a fixed dollar amount can cause issues if the value of the asset is insufficient (or if it increases in value, leaving a portion of the asset to probate). To avoid this, assign a percentage value instead. 

Failing to name a contingent or alternate beneficiary may result in an asset needlessly going through probate. To avoid this, identify a contingent beneficiary who will receive the asset in the event the primary beneficiary cannot accept it, such as when the primary has predeceased. 

The identity of a named beneficiary may not be clear, such as when several people in the family share the same or similar name. Names may also change as a result of marriage or divorce. Always confirm the correct legal name of the intended designated beneficiary and ensure that the applicable document is updated to reflect any name changes. 

Designating “all my children” can create challenges. For example, if a child beneficiary dies before their parent, it may be unclear as to how their portion should be distributed. It may be distributed among the surviving children, or instead, pass to their offspring or descendants. To avoid this issue, one should be specific when naming a beneficiary.

The foregoing is just a general and brief overview of the subject of beneficiary designations and the like versus other estate planning instruments in the state of Florida. 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 merely a few states in this nation which can levy taxes on inherited property. These taxes are sometimes affectionately called death taxes. For beneficiaries or heirs inheriting property in the state of Florida, they will be happy to know that Florida does not have a separate income tax for inherited property. Inherited money is also untaxed at the state level since Florida does not have an income tax system. However, all property is not treated the same when it is inherited.

The following are several tax situations that inheritors of Florida assets should be aware.

While Florida does not levy an income tax on inherited property, the Federal government does. However, the federal inheritance tax only applies to estates over $12.92 million in 2023, and it is double for married couples. The tax is levied against the estate, so heirs will not be on the hook for these death taxes. HOWEVER, in 2025 the amount will be reduced to $5.49 million (adjusted for inflation), unless the law is changed. The gross estate includes Trust assets, assets held in the decedent’s name, jointly held property, accounts designating a beneficiary, life insurance, annuities, among others.

If one inherits a retirement account from a loved one, they would not have taxes levied on the transfer of the account, but taxes may be charged when one tries to withdraw funds from the account. What taxes are imposed will depend on the type of retirement account. An attorney can help ensure understanding of the tax ramifications associated with said inherited property.

If one inherits property that generates revenue, like a piece of rental property for instance, they could owe taxes on the income gained or generated from owning the transferred property. Consequently, if one inherited a multi-family building with tenants and they paid rent during the probate period, one could owe taxes on funds which were collected during the said interim period.

In Florida, there are no separated property taxes, but beneficiaries will owe federal taxes if the inherited property is sold after transfer. The heir should only owe taxes on the gains (capital gains) of the property, or if it increased in value from the point of transfer (date of death) until the point of sale.  The foregoing is called stepped-up basis. Stepped-up basis refers to a tax policy which looks at the market value of assets at the time when the person inherits the asset or real property (i.e., the deceased’s date of death) instead of the value when the prior deceased owner purchased the said assets or real property. If the asset is later sold, the higher new cost basis would be subtracted from the sale price to calculate capital gains tax liability, if any.

The foregoing is just a general overview of the subject of whether Florida Beneficiaries or Heirs may or may not pay taxes on inheritances.

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.

In Florida, as in most other states, if an individual is injured as a result of someone else’s negligence, they can usually file a personal injury claim to receive compensation. However, when a governmental agency is involved such as a city bus or government/public hospital, then such claims must be filed against the government agency, not the employee themselves unless said employees intentionally inflicted the harm and consequently may be held liable.

Plaintiffs injured by the carelessness of government agency or one of its employees in Florida will have to deal with certain rules, regulations or standards. In this article, the term “government” will refer to a governmental entity for a city, county, or the State of Florida. Claims against the Federal Government will be dealt with in another article.

Claims Against a government entity or agency in the State of Florida are limited by law.  This limitation is known as sovereign immunity, and it is based on the English notion that the government cannot be held responsible because “the king can do no wrong.”  The limitation of sovereign immunity extends to all properties and to whomever serves the government. If a garbage truck or police car crashes into a person or a teacher abuses a student, the government decides if the victim is allowed to sue and then limits the recovery up to $200K per person or $300K per tort claim.

In 1975, the passage of Florida Statutes section 768.28 (i.e., Florida’s Waiver of Sovereign Immunity Act, Florida Statutes §768.28) opened the door to claims but also made the entire process difficult to navigate. When the subject strict guidelines are met, a state entity can be held liable for negligence under the same circumstances as an individual but considering the caps permitted under the law. In addition to the caps from 768.28, Florida has also presented a series of barriers in the form of conditions. Failure to comply with all notices, disclosures, and obligations can result in rejecting the claim.

Further, the government is not responsible for policy-making decisions, only those acts that are considered “operational” in nature.  One way of looking at it is this that the decision on whether to put up a stop sign at an intersection is immune from lawsuit.  However, once the decision to install it is made, if it is placed or installed in a wrong manner, not maintained or itself causes a harm, there can be a claim.

Florida imposes certain limitations on the types of claims that plaintiffs or victims can bring, which include but are not limited to:

• Government employees cannot be held personally liable for damage unless they have caused it on purpose;
• Claims against the state of Florida are limited to a total of $200K per person or $300K per incident;
• The state may appeal any resolution of a case; and
• Actions against State Universities must be brought in the county where the University’s campus is located.

From a practical standpoint, due to the cap on damages, the most the government will have to pay to a plaintiff is the capped amount, so an actual interest in settling pre-suit is very rare, forcing the claimant to sue.

Quite often lawyers do not take cases of damages against the county, city, or state of Florida because the injuries suffered and the medical bills are usually higher than what these cases can recover. What many lawyer try to investigate and seek out are other private parties that could be sued and held liable.

Florida’s sovereign immunity restrictions apply to almost all cases of negligence filed against the state or any of its Cities or Counties, including:

• Car accidents caused by county employees;
• Public hospital malpractice cases; and
• Defective city property that causes injuries.

No matter how many people were harmed, how severe the injuries, or how many negligent parties, the government will, unfortunately, only pay the cap per incident. The maximum settlement will always be $200K per person and $300K per incident, which, as mentioned, usually is not enough to cover the actual damages. This limitation applies when dealing with injuries caused in Florida accidents involving the following, among others:

• Public transportation vehicles;
• Police car accidents;
• Unposted street signs; and
• Anything related to the municipality’s negligence.

In addition to the government agencies themselves, the Florida Legislature has passed laws giving private entities “sovereign immunity” privileges as if they were governmental bodies.  These include private charter schools, the South Florida Fair, and some hospitals and doctors.  

Additional limitations apply to cases filed against law enforcement officers or agencies. public health agencies, and the Florida Space Agency.  Claims coming from inmates of the Florida Department of Corrections are also subject to special time limits.        

Punitive damages are not allowed against Florida public entities as well as prejudgment interest, and Florida law limits attorney fees to 25% in cases against the government as a disincentive to pursue these cases.

There is a way around or beyond the $200,000 cap on cases against the State or government. It is not an easy process, but the state allows for a process called a Claims Bill. 

To get a claims bill, a victim will need legislators to draft such a bill seeking compensation beyond the sovereign immunity limit.  It is usually done after a trial and judgment has been entered, and after all appeals have been exhausted.  

If the judgment is larger than the cap, one can seek a claims bill.  But after a bill is filed, it will be sent to a special master who will re-examine the facts and circumstances, there will be hearings, and most claims bills die in committee. 

If bill does not die in committee, most special master or referee recommendations are at a reduced amount of what the award was. The legislature (House or Senate or both) may take a recommended amount and reduce it.  Both the House and Senate must pass the exact same bill and then the Governor must sign it.  There are very few claims bills that are passed and signed each year.

Bear in mind that Cities, Counties and the State generally have their own legal departments, so they will most likely litigate the case through the court system knowing that, even if they lose, they will not have to pay more than $200,000.  Accordingly, the applicable governmental entity is in a position where it will rarely voluntarily pay the full liability amount pre-suit.

Personal injury claims in Florida made against public entities can be complicated and complex, but that does not mean that a Plaintiff or victim lacks recourse when a governmental employee or agency harms them in an accident.

The foregoing is just a general overview of the subject of Personal Injury claims against government entities in Florida.

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.

When should estate planning begin? It is never too early to start planning for the future. Also, if the person is still competent, it is not too late to create an estate plan. Anyone can, and should, create an estate plan to make sure that their assets are managed properly and that any minor children are placed into the care of the person they designate and not someone determined by the courts.

Many financial advisors recommend starting an Estate Plan the moment a person becomes a legal adult and updating it every three to five years thereafter.

As soon as one owns property and has started accumulating greater financial assets and even have children, they should take estate planning much more seriously. For many people, this will happen in their thirties or forties.

Why is an Estate Plan Is Important:to ensure one’s assets go to the right beneficiaries, plan for one’s healthcare at the end of their life, plan for the future of one’s financial investments and accounts, arrange trusts, if applicable or necessary, designate an executor or Personal Representative, arrange guardianship for minor children, if applicable as well as prepare for the future of their business and protect assets, among others.

Five key factors to consider in an estate plan includeBeneficiary Designations. The first and easiest step to planning an estate is establishing beneficiaries of private funds, accounts, or policies, like life insurance policies, 401k plans, IRAs, and pensions; Wills, Transfer of Power, possible Trusts, and Securing Documents.

Seven steps to basic estate planning are:  inventory one’s assets; account for their family’s needs; establish appropriate directives; review designated beneficiaries; note one’s state’s estate as well as Federal tax laws; weigh the value of professional assistance, and plan to periodically reassess.

After someone dies, someone (called the deceased person’s “executor” or “administrator” or “Personal Representative”) must deal with their money and property (the deceased person’s estate). They need to pay the deceased person’s taxes and debts and distribute the deceased party’s money and property to the people entitled to it.

The biggest reason an estate plan is NOT done is-people just have not gotten around to it, according to 40% of survey respondents in numerous publications. Meanwhile, 33% said they do not have enough assets to pass on to their loved ones, while 13% said the estate-planning process is too costly and 12% said they do not know how to get a Last Will & Testament.

Estate Planning is not just the transfer of wealth or distribution of assets after death. Estate Planning also includes planning for oneself in the event of incapacity. Incapacity, whether physical or mental, is increasingly a concern as humans are living longer.

Estate planning has two general objectives: to ensure that the assets are transferred according to the owner’s wishes and to minimize state and Federal taxes.

Some of the Common Estate Planning Mistakes include, but are not limited to, failing to plan, not discussing with family and friends, naming just one Beneficiary, forgetting about Power of Attorney or Healthcare Representatives/Agents, forgetting about final arrangements, forgetting about your digital assets, and forgetting about charities that are important to you, among some others.

As a rule, a person’s debts do not vanish or expire when they die. Those debts are owed by and paid from the deceased person’s estate. By law, family members do not usually have to pay the debts of a deceased relative from their own money. If there is not enough money in the estate to cover the debt, it usually goes unpaid.

While a Last Will & Testament is a legal document, an estate plan is a collection of legal documents. More specifically, they often include a Last Will, trusts, an advance directive (i.e., Living Will) and distinct types of powers of attorney-both medical and financial. An estate plan can manage other estate planning matters that cannot be covered in a Last Will as well.

Estate planning ensures that all of a person’s assets, physical, financial, and online, are inherited by or distributed to the people to whom they wish after their death. The state law might not consider one’s personal relationships or preferences while distributing assets if the said person dies intestate (i.e., without a Last Will) or other viable estate plan mechanism. 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.

It is important to make sure one’s parents have a Last Will & Testament and other estate planning documents that will limit emotional stress after they pass away. The following are a few tips to consider if a person is contemplating discussing estate planning matters with their elderly parents.

Having a frank discussion with one’s parents is something that should be planned. It is suggested that that Florida residents make a list of the various topics and questions they want to cover in the discussion. A date and time for the conversation should be scheduled that is convenient and at a location where everyone feels comfortable attending.

Several conversations might be necessary since it may be too much to get through in just one meeting.

There are a number of important people in the parents’ lives that one will need to contact for estate planning purposes. Family members should ascertain the names and contact information of the following individuals: physicians, attorneys, financial planners, accountants, stockbrokers, insurance brokers, religious clergy, and close friends, among others.

A goal of this discussion should be to determine if one’s parents have existing estate planning documents and whether they are up to date. If they were created more than five years previously, then the children or family members should ask if their parents are willing to review and possibly update the said documents to reflect their current wishes and take into account any changed circumstances. One should also be made aware the location of such documents and, if possible, the identity of the Agents and/or Personal Representatives. They must discuss that each type of document or instruments has a different purpose for a different time. Last Wills take effect after death and is for the distribution of assets and to pay debts of the parent’s estate and the Personal Representative is the one who named to be in charge of said estate.

Financial and healthcare powers of attorney, each appoints someone (an Agent) to manage either their financial affairs or makes medical decisions if said parent becomes incapacitated during their lifetime.

For end-of-life wishes or decisions, a proper discussion should include getting the following directives such as Durable Power of Attorney for Financial matters and Property Management, Healthcare Surrogate for medical decisions and obtaining medical records or HIPAA protected/private/confidential information, Living Wills with general or specific instructions regarding the withdrawal or termination of life support under specific conditions or the type of care they would like and whether life support should be used to keep them alive or not. There are also Physician Orders for Life Sustaining Treatment (POLST) as well Do Not Resuscitate Orders (DNR’s). These documents are explicit directives regarding the type of treatment parents, who are the makers or Principals, would or would not desire.

Children or family members should inquire about and make an itemized list of assets, bank accounts, brokerage accounts, life insurance policies, health insurance policies, long term care, disability, home insurance, government benefits, pensions, liabilities, and debts, among others.

The foregoing is a brief general overview of the subject.

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.

When a loved one passes away, disputes can arise among family members over who will get what assets and how property will be distributed. Issues may also arise regarding what will happen to the deceased’s remains. Prior to 2016, Florida law was not well settled nor specific to deal with such disputes.

A crematorium authority is legally required to hand over the ashes to the person who delivered the body for cremation. That entitled individual has 120 days from the date of cremation to claim the ashes. There are no Florida state laws that restrict where you may keep or scatter ashes.

Pursuant to Florida Statutes Section 497.005(43)(a-i), the right and responsibility goes to the following people, in order-you, if you leave written directions before your death; your surviving spouse, unless your spouse is criminally responsible for your death; your adult child, or a majority of your children if you have more than one; your parents, your adult siblings, an adult grandchild, a grandparent, or any person in the next degree of kinship.

“In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.” According to the previously mentioned statute.

Another way to name the person who will carry out one’s final arrangements is to complete a Designation of Healthcare Surrogate. In the subject document, the maker of Principal can give their surrogate or Agent explicit power to carry out their final arrangements after their death. The said authority must be made clear in the healthcare document; otherwise, the Agent’s or surrogate’s decision-making power ends upon the Principal’s death. This method avoid additional documents and combines healthcare decisions and final wishes.

The disposition of a body is not a property right pursuant to Florida Statutes §732.6005(2), but a personal right of the decedent or deceased party; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). Consequently, the remains of a decedent are not property under Florida Statutes §731.201(32), and therefore, are not subject to ownership by the decedent’s or deceased party’s beneficiaries.

In 2014, a case which received attention was when a father attempted to split the cremated remains of his deceased son in equal shares with his ex-wife (the mother), arguing that the ashes or cremains were part of his son’s probate estate. With little guidance outside of the common law, the court decided the remains were not property subject to probate division. The court relied heavily on case law which supported the proposition that generally, next of kin do not have a property right in their deceased family member’s remains. So, what was the solution? Ultimately, it was up to a trial court judge to decide what would happen to the remains. For many, such a solution may be unsettling, especially because a judge’s decision may not be consistent with what the decedent would have wanted.

On July 1, 2016, the Florida legislature addressed the matter and enacted a statute which codified the common law rule that remains are not estate property. The relevant statute plainly states that cremated remains are not property which are subject to division. So, who has the final say over what happens to someone’s remains? The statute makes the answer clear by providing a list of persons who may be authorized to make decisions regarding what will happen to someone’s remains. The list is in descending order of priority beginning with the decedent’s written instructions. Leaving behind instructions will provide your family with clarity regarding your own wishes—what you want to happen to your remains, who you want to keep your remains, and who will be responsible for making sure your instructions are carried out. If no instructions are left behind, the list provides who else may be legally authorized to make decisions regarding the remains. Whoever is authorized to make final decisions over the remains, may consent to the distribution of the remains. However, if the conflict continues once cremated remains are divided, the dispute will be resolved by the court.

Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?

Florida Statutes §732.804, reads in pertinent part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.

If the deceased party has not expressed their intent regarding the place and manner of the disposition of their remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?

This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4^th DCA 12/9/20). In Giat, the decedent died without a Last Will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”

The court reasoned that common law and not Chapter 497, Florida Statutes, controls the dispute between family members over the disposition of the decedent’s remains.

The focus of Chapter 497, Florida Statutes, is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.

To the contrary, section 497.383(2), Florida Statutes (2022), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, when there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.

The preferred and recommended option to avoid disagreements over disputed remains is to plan ahead. With proper Florida Estate Planning, one can name the appropriate person to make these decisions in order to avoid disputes later on. 

In summary, if the deceased party expressed an intention on the disposition of their remains through a Last Will & Testament or other written directions, then the court will defer to the said Last Will or written directions unless an opponent can prove by clear and convincing evidence that the deceased party changed their mind. If the deceased never expressed an intention regarding the disposition of their remains in their Last Will, etc., then the court will defer to the next of kin. The next of kin are the heirs at law under the laws of intestacy. The law is still somewhat unclear as to who has priority when the next of kin disagree. The disposition of one’s remains is a sensitive issue and a decision which is best made by the decedent exclusively through their Last Will & Testament or other written directions.

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.

As previously reported, Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies. These agencies have their own forms, rules, and regulations.

Again, it is noted that the Social Security Administration does not honor durable powers of attorney.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through regarding the U.S. Department of Veterans Affairs (VA).

Medicare cannot provide personal health information to a caregiver unless the beneficiary has submitted written authorization to the Centers for Medicare & Medicaid Services (CMS) or provided verbal permission over the phone, Medicare beneficiaries may be able to answer basic questions verbally thereby granting their caregivers authorization to discuss coverage details as well as having a standing authorization on file with Medicare is a better practice.

The Office of Personnel Management and the Railroad Retirement Agency also appoint representative payees and the responsibilities are virtually the same.

Family caregivers as well as parents should have POAs and other documents to prove they are legally authorized to access sensitive or confidential information, speak with important entities and/or medical providers and make decisions about a loved one’s finances and/or care and or act on another’s behalf.

As for obtaining or renewing a passport for a minor child when the other parent is unavailable certain government forms are needed as follows.

Passports for minors aged 15 or younger require the consent of both parents unless one parent has sole legal custody. If a parent has sole legal custody, then the other parent’s consent would not be necessary.

Minors ages 16 and 17 can apply without the presence of their parents. Parental consent may or may not be requested. Passports for applicants sixteen (16) and older are valid for ten (10) years.

The U.S. Department of State Passport Services requires both parents to appear to get a passport for a minor child aged fifteen (15) or less. Passports for children under age sixteen (16) are only valid for five (5) years.

In cases where only one parent appears, the applying parent must submit either a notarized consent from the non-applying parent or proof of sole legal custody.

If one parent/guardian cannot go with the child to apply for the passport, they can provide permission by completing Form DS-3053 “Statement of Consent.” The completed form must be submitted with the child’s passport application.

Special circumstances when one or both parents cannot be present, include Form DS-3053, whichmay be used for many instances when either or both parents can be with their child for their passport application, but others fall under Form DS-5525, Statement of Exigent/Special Family Circumstances. If one parent is in prison, subject to a restraining order again the other parent or child, or subject to custody order which leaves them unable to sign DS-3053, then Form DS-5525 may be used.

One parent may also have sole custody of their child; a court order to this affect must be provided with DS-3053. Basically, if any legal guardian of the child is unable to appear in person, then there must be legal documents included with the passport application form.

There are custody situations when it is not possible for both parents to appear in person during the submission of the passport application. Depending upon the basis, a parent may be required to provide additional documents that prove they have the authority to apply without the consent of the other parent.

• If a parent has sole legal custody, they can submit certified copies of the following types of documents:

• Full court order that grants a parent sole legal custody or that specifically states they have legal permission to apply for their child’s passport;
• The child’s birth certificate or adoption decree on which there is only parent listed or named;
• Certified copy of an adoption decree listing one person as the only parent;
• A court order that the other parent is incompetent; and
• A death certificate of the other parent.
• If both parents have legal custody but one cannot appear, that parent can give permission for the other parent to apply by completing Form DS-3053, Statement of Consent:

• Sign the form in front of a notary in the U.S. or at a U.S. consulate or embassy, and
• Submit a copy of the front and back of the ID provided to the notary.

• If one parent cannot locate the other parent you must submit form DS-5525, Statement of Exigent/Special Family Circumstances; and
• Make Sure One’s Divorce Decree or Final Judgment of Dissolution of Marriage, etc., is Clear About Custody and Any Travel.

A parent may need a court to intervene if there is no prior court order or written parental contract that addresses international travel. A parent may want a court to establish specific travel protocols, such as authority to obtain a passport for a child, or to impose travel restrictions on a parent who is threatening to remove a child outside of the United States.

Depending on the circumstances, a court order may include:

• an award of sole legal custody of a child;
• protocols to obtain or renew a passport;
• requirement that the non-traveling parent sign a notarized statement and other forms permitting the child to travel;
• prohibition on a parent traveling abroad with the child without prior court approval;
• supervised visitation with the child;
• that a foreign embassy or consulate not issue any new passports to a foreign national parent and the child, if applicable;
• requirement that the passports of a foreign national parent and the child be held by a third party or in the court registry;
• requirement that a foreign national parent notify his/her country’s embassy consulate of the order prohibiting a new or replacement passport for the child.

If a parent refuses to follow the terms of a parenting plan or custody agreement, such as provisions related to traveling with children, the other parent can sue to enforce the contract. Similarly, if a parent fails to comply with an order, then the noncompliant parent can be found in contempt of court and subject to civil and criminal penalties. Under some circumstances a parent may be forced to seek an emergency order if his or her travel is imminent. It is always better if parents can cooperate.

The website Tavel.state.gov explains what is needed when a parent is unavailable or in the military, and there is a specific form the said parent needs to complete to get the passport for their minor child. 

Again, all children under age 16 must apply for a passport in person with two parents or guardians using Form DS-11. A child’s passport cannot be renewed using Form DS-82. Passports for children under age 16 are only valid for 5 years.

One must submit documentation that lists the parent(s) or legal guardian(s) of the child applying for a passport.

The following may be used to show parental relationship:

• U.S. birth certificate (also evidence of U.S. citizenship)
• Consular Report of Birth Abroad or Certification of Birth (also evidence of U.S. citizenship)
• Foreign birth certificate
• Adoption decree
• Divorce/Custody decree

Some documents, like a U.S. birth certificate, show both U.S. citizenship and parental relationship. These documents must be originals or certified copies (not photocopies).

Both parents/guardians must authorize the issuance of the child’s passport. The best way to do this is for both parents/guardians to go with the child in person to apply for the passport.

When both parents/guardians who are civilians cannot appear in person, the procedure is described above.

However, if the non-applying parent is deployed by the military, he or she should be able to provide a notarized Form DS-3053 in most cases. In the rare case that the non-applying parent cannot be contacted, the applying parent must provide either military orders with a Form DS-5525 showing the non-applying parent cannot be contacted due to the fact that they are on a special assignment for more than 30 days outside of their duty station or a signed statement from the non-applying parent’s commanding officer that the military parent cannot be reached. 

A third party may apply for the child’s passport with a Form DS 3053 or a notarized statement from both parents/guardians giving that third party permission to apply for the child. The statement must include a photocopy of the parents/guardians’ identification. 

When the statement is from only one parent/guardian, the third party must present evidence of sole custody of the consenting parent/guardian giving that third party permission to apply for the child.

A written authorization from the parent that cannot appear in person must be less than three (3) months old.

Further, no child under age 16 is eligible to mail in a passport application. Additionally, a parent cannot apply online for the subject child’s passport.

In certain countries, a DS-3053 must be notarized at a U.S. embassy or consulate and cannot be notarized by a local notary public. Currently, these countries include:

Afghanistan	Indonesia	Pakistan
Algeria	Iran	Panama
Angola	Iraq	Philippines
Bangladesh	Jamaica	Saudi Arabia
Bulgaria	Kenya	Senegal
Cambodia	Kuwait	Sierra Leone
Cameroon	Laos	Somalia
Central African Republic	Lebanon	Sudan
Cote d’Ivoire	Liberia	Syria
Dominican Republic	Libya	Tajikistan
Egypt	Mali	Trinidad and Tobago
Equatorial Guinea	Mauritania	Uganda
Ethiopia	Mauritius	Ukraine
Gabon	Moldova	United Arab Emirates
Guatemala	Nepal	Venezuela
Guinea	Nicaragua	Vietnam
Haiti	Nigeria	Yemen
Honduras	North Korea

In addition, parents may enroll their U.S. citizen children under the age of eighteen (18) in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction.  If a passport application is submitted for a child who is enrolled in CPIAP, the U.S. government tries to alert the parent or parents to verify whether they approve the passport issuance.

Consequently, parents must be prepared with the proper legal documents when applying for or renewing a passport for their minor child in order to avoid problems or delay with the process.

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

Courts in various states follow different legal standards to decide how much a loss of a pet is worth, and whether pet owners are entitled to compensation for their emotional distress.

In the state of Florida, pets are generally considered personal property. Pets belong to a human individual and are the responsibility of that owner. Although one may feel as if their pet deserves the same treatment as a person, that does not mean that they are granted the same legal status as human beings under Florida law.

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When someone is liable for an injury to one’s pet, that owner may become emotionally  devastated and angry. Most owners want to be and believe they should be compensated for their loss. If it is only a matter of a veterinarian’s bill to treat the injury, the amount of that loss should be relatively easy to calculate. HOWEVER, what would be fair compensation if one’s pet died, or the owner or family member had to watch it suffer? While most Americans treat their companion animals like members of the family, the law generally treats them like personal property. The rules or laws vary from state to state when people sue over a pet’s injury or death. Courts in most states limit the compensation to the owner’s economic losses. In cases involving deliberate or malicious wrongdoing, some states allow courts to award compensation for the owner’s emotional suffering or extra money as a form of punishment.

When a dog or cat or other pet has been hurt, the first expense is usually for veterinary/medical care. The person responsible for the injury will probably be liable for those bills. Courts usually allow compensation only for “reasonable” treatment. The question of what is reasonable depends on several factors, including the extent of the injuries and the animal’s age and general condition.

If the veterinary bills were particularly high for an older pet, some judges may find that the owner is entitled to no more than the amount of the animal’s fair market value. On the contrary, many courts have rejected that approach. For example, a Kansas court found that owners of a 13 year old dog were entitled to reimbursement for reasonable veterinary treatment needed to get their pet back to health. Another Illinois court explained that the owners of a 7 year old dachshund had shown how much their pet was of value to them by paying nearly $5,000 in medical bills after a neighbor’s Siberian husky mauled it. Accordingly, they were entitled to compensation for the full amount of the bills rather than only the dachshund’s $200 market value.

Whenever a pet has been injured, keep records of all bills for treatment, medication, and hospitalization to use during negotiations or at trial. An owner probably will not be paid back for the time they took off from work to care for the dog or take it to the veterinarian, but it cannot hurt to keep a record of that time if it has been extensive.

There are three different ways that courts generally measure an animal’s economic value: fair market value, replacement value, or the special value to the owner.

• Like any other property, the fair market value of a pet is the amount that it would bring if it were sold on the open market. A few of the factors that go into calculating the market value of an animal include its purchase price, age, health, breed, and pedigree.
• Some courts award pet owners what it would cost to replace the animals. The replacement value is probably higher than the market value because it can include things like training and accomplishments (such as winning awards at shows).
• Periodically, an animal’s market or replacement value cannot be determined or does not reflect its true economic value based on its special services or usefulness to the owner. For example, in a case involving a prize-winning pedigreed dog, the court found that the animal’s value to its owner was $5,000, largely because the owner had spent a great deal of time and effort to give the dog specialized and rigorous training. The owner simply would not be able to find another dog like it on the open market. The court also considered the owner’s lost earnings from stud fees.

Because dogs or other animals kept for breeding are essentially business assets, their monetary value may include the lost potential revenue. However, judges may still stick to the replacement-value standard, reasoning that the owner can get another animal that will generate the same income.

Special value to the owner can be particularly relevant in cases involving assistance animals, which require extensive specialized training and become more useful to their owners the longer they work with them. Laws in a number of states specifically entitle the owner to collect extra penalties from the person responsible for killing or hurting a service animal, as well as reimbursement for the replacement cost and other expenses needed while doing without the animal’s assistance.

For most pet owners, whose pets do not win prizes or collect stud fees, the real value of their companion animals cannot be measured by what someone else would pay or what it would cost to buy a replacement. Lawmakers in several states have begun to recognize this fact. In Tennessee, pet owners may recover non-economic damages (up to $5,000 in 2017) as compensation for the loss of “companionship, love and affection” in certain cases when their pets have been killed intentionally (and illegally) or through negligence. Further, a few courts have found that sentimental value could be one element in an animal’s actual value to the owner if it does not have a meaningful market value. However, when judges recognize the sentimental value of pets, it is usually in the context of compensating the owner for out-of-pocket treatment costs that exceeded the pet’s market value.

To date, courts in most states, including Florida, follow the traditional view that owners are not entitled to recover non-economic losses for sentimental value or lost companionship when their pets are killed through negligence.

Some owners try to circumvent the limitations on compensation for the value of a pet by suing those responsible parties for their pet’s loss for the mental suffering the owners experienced. Whether they can be successful depends in part in which state they reside and the nature of the actions that led to pet’s injury or death.

Courts in most states do not allow claims for emotional distress when those responsible were simply negligent .  A damaged pet owner may have more success when the responsible party acted maliciously or meant to make the owner suffer, i.e., what is known as “intentional infliction of emotional distress”. In a particularly egregious case, a Washington appellate court found that a cat’s owner was entitled to $5,000 for the sleeplessness, depression, and other emotional distress that was experienced after three boys maliciously set the cat on fire.

Generally, pet owners can sue for two types of mental distress: first, the shock and distress caused by seeing an accident or mistreatment, and second, the grief and long-term effect the loss has on their lives. The more outrageous the conduct of the person being sued, the more likely the court is to award compensation for emotional distress, and the larger the award is likely to be. Proving mental suffering is not easy. Pet owners, however, can testify about how they felt when their pets were killed and how the loss disrupted their lives. If they sought medical treatment or psychological counseling, then it may strengthen the claims.

When a court orders someone who injured or killed a pet to pay the owner, that money is intended to compensate for the economic and, at times, emotional loss. In some states, courts may also award “punitive damages” intended to punish the wrongdoers for outrageous or deliberate actions. For example, California law specifically allows these types of awards, which are known in that state as “exemplary” damages”, for injuries to animals “committed willfully or by gross negligence” pursuant that state’s statute.

Punitive damages may be especially appropriate in animal cases, where compensation is likely to be low. A Minnesota court explained in a particular case that if compensatory damages do not make it worthwhile to sue, the wrongdoing will go unpunished unless there are punitive damages assessed. 

If asked, most owners would likely say their pet’s value is “priceless.”  In fact, a study by Kelton Research found that 81% of those surveyed consider their dogs, and other types of pets, to be true family members, on a par with their children. The death of a pet can be devastating to the human companion/owner, especially if the death is the result of a negligent or intentional act. In the legal world, however, a pet’s worth has been, for the most part, limited. 

Historically, the recovery for the death of a companion animal has been limited to a loss of property claim with damages calculated by the fair market value of the animal. For those of us with mixed breeds or older pets, which would mean they are literally worth nothing. 

This area of law is changing, however. A few courts have allowed juries to base a pet’s economic worth on other factors, such as special training, original purchase price, and cost to replace. These damages are known as “actual” or “intrinsic” damages.

In one case., the plaintiffs/owners sued their veterinarian and animal hospital, alleging the defendants (responsible parties) negligently administered anesthesia during a diagnostic treatment which resulted in the death of their pet German Shepard. The plaintiffs complained that because of the defendants’ negligence, they were deprived of the companionship, loyalty, security, and friendship of their dog. The trial court dismissed the case, ruling the law did not allow a pet owner to recover for loss of companionship. On appeal, the court agreed with that ruling, stating that pets are an item of personal property. However, the court also recognized that some items of personal property have no market value, such as pets, heirlooms, photographs, and trophies. The court held that where an object which has no value is destroyed, the measure of damages to be applied is the value to the owner. 

Other state courts have recognized the sentimental value of pets to their owners. In LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964), the Florida Supreme Court upheld a $1000 punitive damage award to the owner of Heidi, a miniature dachshund who was killed when a garbage collector, maliciously, and with extreme and utter indifference threw a garbage can at her. The court held that the affection of an owner for their dog is a very real thing, and that the malicious destruction of a pet should allow for recovery of damages beyond the value of the animal.

However, a Florida appeals court has refused to expand the law to allow emotional distress damages in a veterinary malpractice case where there was “no impact.” The impact rule requires some form of physical impact prior to recovery of emotional distress damages. In Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st DCA 2004), the owner of a basset hound sought emotional damages for veterinary malpractice in the treatment of his dog. The appeals court refused to allow the damages, stating that it would not abandon the impact rule and allow emotional damages in veterinary malpractice cases. It cited some earlier contrary decisions but ruled otherwise, i.e., Johnson v. Wander, 592 So. 2d 1225 (Fla. 3d DCA 1992), which was a veterinary malpractice case where, as in the foregoing case, the trial court entered a partial summary judgment on the claims for damages for emotional distress and subsequently granted a motion to change the case from circuit court to county court due to the lower jurisdictional amount sought in the claims remaining. In that case, the Third District held that a jury question was presented on the issues of gross negligence and mental pain and suffering as claimed by the dog’s owner and the trial court improperly transferred the case to county court as being a claim for less than the circuit court jurisdictional amount. In Knowles Animal Hosp., Inc. v. Wills, 360 So. 2d 37 (Fla. 3d DCA 1978), the Third District specifically held that a dog owner was entitled to collect for emotional damages in a veterinary malpractice case. 

Many state courts have been reluctant to allow non-economic damages.

The courts have instead deferred to their respective legislatures to step in and enact laws on damages in pet cases. Tennessee as the first such state to enact legislation. Known as the T-Bo Act, the Tennessee legislation allows for non-economic damages for the negligent, intentional, or unlawful act of another or animal of another. It limits recovery to cases involving cats or dogs and the cap on damages is $5000. 

An Illinois’s statute limits claims for cases in which the defendant subjected the animal to aggravated cruelty or torture or engaged in bad faith which led to the animal’s death or injury. The law applies to any animal to which the plaintiff has a right to ownership, not just cats and dogs. Therefore, a horse owner would have an avenue of recovery. However, damages are limited to $25,000 for each act of cruelty. Attorney’s fees and costs can be recovered under the statute.

Connecticut then followed suit with its own statute, but it is much more limited as to recovery. It only allows recovery in situations where the act was intentional and is limited to cats and dogs. The statute does not allow for emotional damages for owners, but instead names types of economic damages that may be recovered and allows for punitive damages. Attorney’s fees are allowed for a prevailing human companion. 

Other states have followed with their own legislation. California and Montana have enacted statutes which allow for exemplary damages in cases of willful or gross negligence. Maryland allows for compensatory damages in cases where the defendant tortuously causes death or injury to a pet. The damages are limited to $7,500.

A court decision exists in Florida, in a divorce context, where a court addressed the issue of pets in divorce. In the case of Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995), the First District Court of Appeal defined the family pet as personal property and rejected a trial court’s order that provided post-divorce visitation for the parties’ dog, including a weekend visitation schedule and every other Christmas holiday. Consequently, the court recognized that post-divorce custody and visitation issues would lead to continuing enforcement issues. Although the court recognized that some other states have provided pets with special status in divorce proceedings, the Florida court declined to extend such protections to Florida pets. In refusing to provide any special considerations or status to pets in divorce, the court also recognized the substantial burdens placed on the Florida court system associated with post-divorce enforcement of child support and visitation matters in regular human custody cases. Accordingly, the subject pet’s fate was dictated by an application of equitable distribution principles that defined its existence as personal property, affording no special consideration of the pet’s interests. While the trial court was trying to reach a fair solution under difficult circumstances, the appellate court made clear that pets are animals not subject to a best interest analysis and that their fate must be resolved by following the dictates of Florida’s equitable distribution formula. The personal property calculation taken in conjunction with the court’s rejection of a pet’s “special status” in a divorce would appear to limit the trial court’s authority to take noneconomic valuation testimony about potential harm or abuse to the said pet. The lack of other reported court decisions in Florida makes it difficult to discern the court’s intent in Bennett beyond the prohibition of pet visitation awards.

Bills have been introduced in many other states over the years but have had little success. Legislators appear to be reluctant to change the status of pets as property and potentially open the flood gates for more litigation in both the national and state court systems.

If you or your pet have been injured because of the negligence or malice of others or have any questions regarding the foregoing or want to discuss any other legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

The basis for any good Estate Plan is a strong Last Will & Testament.Estate Planning is the process of creating a legally binding plan for what will happen to a person’s assets (i.e., personal & real property) usually known as one’s estate after a person passes away. While Estate Planning can take many forms, a Last Will & Testament or Last Will allows one to dictate how and to whom their estate and/or assets will be distributed after paying appropriate expenses in an organized and streamlined fashion.

In a marriage, many things are done together, i.e., bank accounts get combined or are joint, vacations and other activities are done together, etc. It is technically possible to do one’s Estate Planning together as well. In Florida, a married couple can create a “Mutual Will or Agreement” mirroring the exact same wishes to their own individual Last Wills. HOWEVER, this is not the best idea or way to do things.

Specifically, Florida does not recognize Joint Wills. As a result, a married couple must create two separate Last Wills. This situation limits a married couple’s ability to ensure that their spouse would not change or revoke their Last Will upon their death. Many married individuals fear that their spouse will alter their Last Will and Testament following the death of their spouse. In most Last Wills, married couples agree to transfer all their assets and property to the surviving spouse when they pass away. However, when one spouse dies, the other spouse can freely change the beneficiaries in their own Last Will or otherwise deviate from the agreed upon plan. Joint Wills are used to prevent the surviving spouse from altering their Last Will upon the death of the first spouse. Consequently, since Joint Wills are not valid in Florida, married couples can create a Mutual Will Agreement.

A Mutual Will Agreement (MWA) is different from a Joint Will. Unlike Joint Wills, an MWA is a valid and enforceable contract in Florida under Fla. Stat. § 732.701. Essentially, an MWA is a contract between two spouses that outlines the contents of their Last Wills. This agreement can also be used to prevent spouses from changing their own Last Wills upon the death of the spouse who dies first.

To be valid, a Mutual Will Agreement must be signed by both spouses in the presence of two witnesses. Married couples can benefit from entering into this agreement to eliminate the risk that the surviving spouse might change their Will upon the other spouse’s death.

In the absence of a Mutual Will Agreement preventing them from changing or revoking the Last Will, the Testator, who is the person who created the Last Will and Testament, has a right to amend or revoke their Last Will any time before their death.

As previously mentioned, an Estate Plan is something very personal to an individual. It is made to explain a person’s wishes for the future, so it should reflect the specific intent of that individual. While many things are shared in a marriage, a Last Will, especially as it relates to a person’s assets, their extended family, and personal belongings, should be tailored exclusively to said individual.

There are also logistical concerns to consider. If one spouse passes away before the other, which tends to be the case, the Last Will could becomelocked. The living spouse might be unable to make any changes to it for the rest of their lifetime. What is more, the distribution of assets would beginwhile one spouse was still alive, which can be awkward or emotionally difficult. This is one of the main reasons why every adult should have their own individual Last Will & Testament.

If a person has any children from an earlier relationship, that would be even a greater reason to create their own Last Will. Blended families should be protected with individualized and customized Estate Plans since they may not be recognized in probate court without one.

The parties may even go as far as to include a “non-mutual” clause in their own individual Last Will & Testament. If used, then the “non-mutual” clause should expressly state that the surviving spouse can change or revoke their own Last Will despite any interest received. This additional expression of intent will show that one’s specific wishes are their own and should not be copied onto or from their spouse’s. Married individuals can include the foregoing language in their respective Last Wills.

If you have additional questions or would like to discuss your legal issues, including Estate Planning, please contact an attorney with CASERTA & SPIRITI at your earliest convenience. As the old saying goes-there is no better time to start than the present!