Rubin on Probate Litigation

Dixon v. Bellamy , 252 So.3d 349 (Fla. 4d DCA 2018) This decision clarifies the statute of limitations for determining paternity for purposes of intestacy in a probate proceeding. Prior to 2009, there was a four year statute of limitations from a person's 18th birthday to bring a proceeding to determine paternity. In 2009, F.S. 732.108 was amended to eliminate the four year statute of limitations imposed by F.S. 95.11(3) on paternity determinations in a probate proceeding to determine intestate succession going forward. Because there is no explicit language in the amended statute creating a new cause of action, the Court held that all causes of action accruing before the statute was amended are subject to the four year statute of limitations.

Cohen v. Shushan , --- So.3d --- (Fla. 2d DCA 2017) In Florida, a "surviving spouse" receives certain benefits- they can take an intestate share of the deceased spouse's estate and they may also be entitled to an elective share, family allowance, homestead and so on. Under principles of comity, Florida courts will recognize the marriage of citizens of a foreign country if that marriage was valid under foreign law.  Here, a surviving child of a decedent and a purported spouse of the decedent disagreed regarding whether a marriage would be deemed valid under Israel law, and as a result whether the marriage should be recognized by the Florida Probate Court for inheritance purposes. After hearing expert testimony on Israeli law, the trial court held that because the surviving spouse would be considered the decedent's "reputed spouse" under Israeli law, she should take under Florida's intestacy law.  A "reputed spouse," translated from Hebr...

Rose v. Sonson , 208 So.3d 136 (Fla. 3d DCA 2016) This decision deals with the ability of a child born out of wedlock to establish paternity in his putative father's intestate estate.  The result turned on an analysis of the history of paternity proceedings within the probate context.  Between the petitioner's birth in 1964 and 1986, only the mother of a child born out of wedlock could bring suit to establish paternity.  In 1986, F.S. 742.11 was changed to allow both putative children and fathers to bring suit to establish paternity and at the same time, F.S. 95.11(3)(b) was amended to impose a four year limit, running from the date the child reached the age of majority, to bring such an action.  In 2009, the four year statute of limitations was removed from F.S. 742.11 by way of an amendment to F.S. 732.108(2)(b), expressly eliminating the application of F.S.95.11(3)(b) to paternity adjudications when determining intestate succession in a probate ...

Carroll v. Israelson , 169 So.3d 239 (Fla. 4th DCA 2015), 2015 WL 3999486 The focus of this case was the applicability of F.S. 732.507(2), dealing with the effect of divorce on a decedent's will which included a devise to his former spouse and a trust for her family. The decedent and his former spouse divorced one month before his death. Understandably, at the time of his death, he had not yet changed his estate plan to remove his former spouse from his will.  At his death, the will provided for the residuary of his estate to pass to his former spouse, and if she predeceased him, to a family trust created under her  revocable trust.  The former spouse's revocable trust gave her the right to receive income and principal from the trust and to revoke or modify the trust at any time.  Upon her death, a family trust would be created for the benefit of her niece and nephew.  At the time of their divorce, the decedent and his former spouse entered into a m...

Ciungu v. Bulea , 162 So.3d 290 (Fla. 1st DCA 2015), 40 Fla.L.Weekly D.689c The decedent's here, a husband and wife, died intestate owning property in both Florida and Romania. One of their children filed Petitions for Administration in both estates and was appointed as personal representative.  He filed probate inventories and served them on his sister and no objections were filed. The trial court entered an order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister had fulfilled her obligation to ensure legal title to the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law. The sister filed a motion to vacate that order, asserting that the probate court lacked subject matter jurisdiction over the Romanian property.  At the hearing on the Motion to Vacate, the trial court heard several other issues and ultimately made the following decis...

Aldrich v. Basile , --- So.3d --- (Fla. 2014), 2014 WL 1250073 The issues in this case stem from an "E-Z Legal Form" executed by the decedent, which apparently neglected to include a residuary clause.  Thus, the decedent left a will which simply devised a list of specifically described property to her sister if she survived her, and if she did not, left that property to her brother.  When the sister predeceased the decedent, she left the decedent additional property which was not included in that list.  This meant that when the decedent ultimately died, she died owning property that was not listed in her will.  While she did draft a document, entitled "Just a Note," which stated that all of her "worldly possessions" should pass to her brother, this document was not properly executed and was therefore not an enforceable testamentary instrument under the Florida Probate Code. The brother argued that he was entitled to all of the property, including ...