Rubin on Probate Litigation

Schlesinger v. Schlesinger , 186 So.3d 618 (Fla. 3d DCA 2016) This case involved a dispute between the former spouse and the widow of a decedent regarding the right of the widow (as co-personal representative of the decedent's estate) to discover personal bank records of the former spouse.  The widow argued that she needed the discovery in order to determine whether the decedent had violated the terms of their post-nuptial agreement by making gifts to his former spouse, and decreasing the portion of his estate which would pass to the widow.   The Court granted the former spouse's petition to quash the trial court's order denying her motion for protective order to bar discovery of her  banks' records.  It held that the widow, as co-personal representative, has the right to his  banks' records, which she could use to make the determination of whether improper gifts were made.  It also held that the discovery was premature, since no determination had ...

Smith v. Smith , 199 So.3d 911 (Fla. 4th DCA 2016) This decision deals with the question of whether a ward's right to marry is subject to court approval during a guardianship proceeding.   Florida Statutes § 744.3215(2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.  If the right to enter into a contract has been removed, the right to marry is subject to court approval.   The Court held that the plain language of the statute does not state that a "marriage" is subject to court approval, but instead that the "right to marry" is subject to court approval.  Therefore, it held that if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.

In re Guardianship of Mount , 189 So.3d 213 (Fla. 2d DCA 2016) In this short opinion, the Court was asked to consider whether a guardianship court could compel the co-trustees of a ward's revocable trust to return assets to the guardianship.  The Court held that unless an action was commenced by the guardianship against the co-trustees, the Ward's beneficial interest in the trust did not give the guardianship court the authority to override the decisions of the co-trustees in the management of the trust.