This was the case before a Florida probate court and later Florida’s Third District Court of Appeals, which was tasked settling issues that arose when a former wife and the estate of her recently-deceased (but long-time divorced) ex-husband disputed financial claims and rights to a residence in which they had both been long-time co-tenants. Both the estate and surviving ex-wife consulted with Miami probate lawyers to help them duke out the details.

Per court records, here’s what happened:

More than four decades ago, when the pair were still married, they purchased a property in Miami-Dade County and resided there together as husband-and-wife. Then, in 1986, the husband moved out of the residence, and the wife continued to live there. The marriage wasn’t legally dissolved until 10 years later, in 1996. The husband never moved back into the home, though he did occasionally come by for mail. But otherwise from that date until husband’s death in January 2010 in the Haitian earthquake, the exes held title as “tenants in common,” each having a 50 percent undivided interest in the property, though wife had exclusive occupancy. (In 2005 the wife’s mother also moved in, becoming a second occupant.)more Miami Probate Lawyers Ask: Does Co-Tenant Ex-Wife Owe Decedent’s Daughter Rent?

Documents filed by decedent’s daughter as personal representative of her father’s estate filed a motion requiring the former wife to pay rent. The ex-wife filed her own motion, asking the court to determine whether she was entitled to any offsets for money she’d already paid toward the mortgage, taxes and maintenance of the property. Fair market value of the property was determined the property had a fair market value of $160,000 and was held free and clear of any mortgage. The ex-wife didn’t dispute this, but did point out she’d spent nearly $315,000 on the property since the start of her exclusive occupancy – with no reimbursement from her ex. This, she said, entitled her to a set-off of half that money, or $157,000 – almost the full value of the home, against any rent she owed after her husband’s death and also against her own 50 percent interest in the place.

Miami probate lawyers argued the case, and the court held the reasonable rental value of the house was $2,100 monthly, the estate was entitled to one half that month, effective February 2010, and judgment for the estate’s share of past-due rent based on that amount (roughly $16,000) was due in 45 days, or else that would also count toward her offset (which it was).

The estate appealed.

Appellate Court Reverses Rental Payment Ruling, Stipulates Payment to Estate Possible in Event of Future Sale

It was noted that prior to decedent’s death, his former wife had exclusive possession of the home and no requirement to pay rent. The court did find that former wife’s arguments regarding an entitlement to a set-off in this Florida probate litigation were tough to address. The court pointed out that unless the final divorce agreement expressly imposed on the ex-spouse in possession of the property the obligation to pay rent without receiving any set-off credit in return (and there is a just legal basis for doing so), the right to credit for those payments made is one that is established by law. Property expenses can be included in this set-off amount, including those made for interests, insurance and taxes. It was well-established that the credits that had been presented likely exceed the agreed-upon $80,000 interest held by the estate. Further, wife presented evidence that she alone was the one to pay the mortgage from 1986 until several years ago, when the home was paid off, and that she’d spent a substantial amount in maintaining the property.

That said, the court indicated there could be some entitlement credits made in the future, if and when the home is ever sold. However, the court declined to find – as decedent’s daughter argued – that the former wife’s claims to credits from her ex-husband’s estate were extinguished by statute of limitations.

Thus, the appellate court reversed the order compelling the ex-wife to pay rent to the estate. To do so, the court held, would be to leave this woman and her elderly mother of any equity in the home before it could be realized.

This case reveals why if you still have property with an ex-spouse, you too may need to consult one of our Miami probate lawyers to protect your interests, even if you are long-divorced.

Call Miami Probate Lawyers at Richard Ansara Law Firm at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Joseph v. In re: Estate of Gerard Joseph, March 21, 2012, Fla. 3rd District Court of Appeal

More Blog Entries:

Create a Florida Living Trust to Make Life Easier for Family After You Die, Oct. 15, 2018, Miami Probate Lawyers Blog

Generally, there are two ways this happens:

• A court order, typically following some type of biological testing.
• A signed acknowledgment by the father while he was alive.

A recent Florida case raised an interesting question that could be applicable to future probate litigation cases involving intestate estate where paternity is disputed. The Florida Supreme Court recently weighed in on the question of whether one can establish paternity when someone else is already presumed so by law.more

According to court records, a man claimed to be the father of a daughter born to respondent, as the two had been in a relationship for several years prior to the girl’s birth. However, the girl’s mother was also married to another man – a fact claimant said he did not know about prior to the child’s birth. Despite the marriage, the woman’s husband initially did not claim the child as his own, and claimant was present for the girl’s birth and supplied both financial and emotional support for the girl thereafter. Some time later, claimant asked a Florida civil court judge to declare him the child’s legal father. Both the girl’s mother and her husband objected, arguing a child born to a couple who is married is legally presumed to be the child of that couple. Trial court judge sided with the girl’s mother, finding that despite claimant’s evidence of paternity, he had no legal grounds upon which to pursue a paternity claim involving a child who was born in wedlock where the wedded couple objected.

The Florida 4th District Court of Appeal reversed, finding there is a presumption of legitimacy when a child is born to a married couple, but that presumption is rebuttable, meaning if he can produce evidence of his paternity, claimant does have the right to do so. The girl’s mother and her husband asked the Florida Supreme Court for review, and that request has been granted. In its decision to accept the case, the court pointed out the different conclusions reached by other appellate district courts in the state on the same issue.

The Florida Supreme Court‘s ruling came down on the side of the 4th DCA. In its decision, the court held that other courts that prior to this had adopted the legitimacy rule imposing an absolute bar to a biological father’s paternity claim when the child is born to a married couple was not necessary when previous case law had already established that even if a legal father is proven not to be the biological father, there must be a clear and compelling reason – based primarily on the child’s best interest – to overcome that presumption.

As for probate litigation cases, such matters may be more difficult to resolve after the death of either the presumed legal and/ or biological father, which is why it’s best to discuss options with an experienced South Florida probate litigation lawyer.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Simmonds v. Perkins, June 28, 2018, Florida Supreme Court

More Blog Entries:

Time Considerations in Challenging Probate Estates in Florida, July 5, 2018, South Florida Probate Litigation Attorney Blog

Although sometimes there is little expectation of an inheritance due to long-term erosion of the relationship, for many adult children and grandchildren, the news can come as something of a shock. The decision of whether to take action is a difficult one and will probably depend at least partially on what the odds are you’ll be successful in obtaining an equal share or at least a fairly-negotiated settlement with the named heirs.

There are a number of ways you may be able to challenge if you are left out of a will, all of which are time-sensitive so getting a probate lawyer involved as soon as possible is an imperative.more

These sort of cases aren’t especially unique, and occasionally one makes headlines due to one or two high-profile litigants. We say that recently with the estate of the late TV host and country singer Glen Campbell in Nashville, Tennessee. Campbell is best known for hits, “Rinestone Cowboy” and “Southern Nights.” Born the seventh of 12 children to a sharecropper in Arkansas, he was married four times and had eight children when he died at 81 of Alzheimer’s disease in August 2017. His estate was initially estimated to be valued at $50 million, but the court-appointed administrator recently released a far lower estimate to The Tennessean: little more than $400,000. That reportedly excludes future income rights from royalties, which are still pending an appraisal.

Previously, the local newspaper reported Campbell’s 13-page will drafted in 2006 (five years before he was diagnosed with Alzheimer’s disease) specifically excludes three of his eight children. His five other children were named as beneficiaries. The battle over the estate actually began when Campbell was placed in a conservatorship. After his death, his wife was named as executor of his estate, and the three excluded children (from his second wife) have since served notice that they will be contesting the will. (The will also prohibits any distribution to the singer’s two surviving siblings, though they have not filed any paperwork to contest.)

Court records show a subpoena was issued to the singer’s former publicist, seeking testimony as to Campbell’s competence when he signed the will. This is a challenge sometimes referred to as “capacity.” The publicist has been asked to submit all communications with or about Campbell and/ or his agent dating back to 2002.

If you are excluded from a will in Florida, a probate lawyer may be able to help you challenge that exclusion if there is clear and convincing evidence that:

• The will was invalid;
• The claimant was accidentally disinherited.

Most wills are generally presumed to be valid so long as they are verified, so claimants contesting it will need to overcome the presumption that the omission was not accidental and wasn’t drafted under duress, fraud or lack of mental capacity.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Court record: Glen Campbell specifically excludes 3 of 8 children from will, Nov. 30, 2017, By Walter F. Roche Jr., The Tennessean

More Blog Entries:

Family Conflicts Are Top Threat to Your Inheritance, Estate Planning Key,May 14, 2018, Fort Lauderdale Probate Lawyer