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Sarasota Legal Blog

Challenges for same-sex couples pursuing divorce

Along with the right to marry comes the right to divorce.

It's been two years since same-sex couples gained the right to marry in Florida. Shortly after the seminal court decision in Brenner v. Scott recognized this right, Florida courts also began handling same-sex divorces.

Although the dissolution process - as well as the law - is the same regardless of the genders involved, gray areas still remain when it comes to certain aspects of same-sex divorce. Gay or lesbian couples considering dissolution should be aware of these issues and seek guidance from an attorney who understands them.

Pretermitted children and entitlement to an estate

Previously, we began looking at the topic of children born after the execution of a will and state law regarding their entitlement to a portion of the deceased parent’s estate. As we noted, such children are entitled to the portion of the state they would have taken if there had been no will, provided certain conditions are met.  

In addition to the two conditions previously mentioned, a third condition is that, in cases where the testator knew the child at the time of death, the testator must not have left substantially all of the estate to the other parent of the child. If the other parent survives and is entitled to take under the will, the child does not have a legal right to a share of the estate, though typically the fact that the parent is able to take under the will would help address the financial needs of the child. 

How these 3 estate planning mistakes open the door to family disputes

Nobody wants their family members to squabble over inheritances after they're gone. No one wants to leave a legacy of heated battles. One of the main goals of estate planning is to prevent such disputes from happening.

It's your property, your wishes, your decision of what to leave to whom. Yet without a well-crafted estate plan, those decisions might instead end up in the hands of a judge. Legal battles over your estate plan can not only tear your family apart; they can also drain the resources from your estate.

Three mistakes in particular can make your plans vulnerable to attack.

Will Marlins pitcher’s death result in estate dispute?

Florida baseball fans remember that, last September, Miami Marlins pitcher Jose Fernandez died in a boating accident near Miami Beach, Florida. Though Fernandez was unmarried at the time of his death, his girlfriend was pregnant with their child. She was not, however, named as a beneficiary on Fernandez’s trust. Rather, his mother was named as the sole beneficiary.

Fernandez’s trust is reportedly worth millions of dollars, so both his girlfriend and their child stand to lose a lot for not having been named as beneficiaries. It isn’t clear whether Fernandez wanted it that way. Although there is no indication that there is a legal battle over the trust, it is possible that there could be a fight over whether Fernandez intended to exclude his child from the trust. 

A look at some precautions contractors should take with AOB agreements, P.2

We’ve been looking in recent posts at the topic of Assignment of Benefits agreements, the risk of over-inflation and fraud, and the need for contractors to take precautions to protect their right to seek compensation under the homeowners policy for repair work provided in connection with an Assignment of Benefits agreement.

One of the reasons it would be important for contractors to investigate such matters before entering into an Assignment of Benefits agreement is that the costs they incur in performing the repair work may be drastically different than the costs estimated by the insurance company. If the insurance adjuster low-balls the estimated cost, the contractor may want to think twice about taking the job since it could mean he or she will run into problems seeking compensation. 

A look at some precautions contractors should take with AOB agreements, P.1

Last time, we began looking at the issue of assignment of benefit claims, and the financial strain they are putting on Florida’s homeowner’s insurance industry. As we noted, one of the big criticisms of assignment of benefits claims is that they open the door for contractors to file fraudulent claims, and ultimately can put the homeowner at risk if the insurance company and the contractor cannot resolve disagreements.

Typically, Assignment of Benefits agreements transfer all insurance rights, benefits and legal claims under the insurance policy to the contractor. This means that the contractor can do what he or she needs to do to take care of the problem without worrying about whether he or she is going to be able to seek compensation under the insurance policy for the work. This can be a good thing, but it is important for contractors to understand the process and take the proper precautions to protect themselves. 

What homeowners should know about swimming pool defects

In Florida, swimming pools aren't just a luxury; they're almost a necessity. Building an in-ground pool can add significant value to your property and provide a refreshing escape.

However, swimming pools aren't without problems. Far too many homeowners spend significant amounts of money to install a swimming pool, only to discover defects that may require substantial repairs or even replacement.

Assignment of benefits claims put massive strain on homeowners insurance industry in FL

Under Florida law, homeowner’s insurance policyholders are able to assign the right to seek insurance reimbursement to third-party contractors. Contractors who have reimbursement rights assigned to them are then able to seek compensation from the insurance company for repairs, such as leaky pipes, and may file claims against the insurer if payments are denied or minimized.

One of the criticisms of assignment of benefits rights is that it allows dishonest contractors to overinflate the compensation due to them or to submit fraudulent claims. When this happens, it is argued, the insurance company and the contractor are left to resolve any disputes without the involvement of the consumer. 

Considering some important financial issues in divorce negotiations, P.3

We’ve been looking in recent posts at some of the issues couples need to keep in mind when approaching financial negotiations in divorce. Negotiation of property and assets division should, we said last time, take into account tax costs and couples should look out for their own credit health.

It should be kept in mind that child custody can, to an extent, have an impact on property division, even though property division is a separate matter. A parent who is awarded primary custody of the children may receive stronger consideration with respect to taking possession of the family home. This decision is tied up with the court’s determination of the living arrangement that is in the best interests of the children, though. 

Considering some important financial issues in divorce negotiations, P.2

Last time, we began discussing some of the important issues that need to be considered when dealing with the financial aspects of divorce. As we noted, there is the importance of taking stock of one’s own financial situation and ensuring that one’s spouse is fully disclosing his or her assets. This is particularly important for the financially weaker party or the party who will have primary custody of the children. Negotiation fits within the laws of the state concerning property division as well as the terms of any valid agreement between the spouses.

In negotiating the division of property, couples need to be mindful not only of the value of the property in question, but also the costs associated with the property, particularly taxes. Some assets will have high capital gains tax associated with a later sale, which can prove costly for the spouse who eventually sells the property. Other future taxes can also make a difference in the desirability of certain assets.