DEATH & DIVORCE IN FLORIDA — can you have a Florida probate & a Florida divorce at the same time ? (Yes, even after the husband passes away)

Uncategorized • Feb 10, 2014

A recent Florida appeals court opinion, issued just days ago, had a Florida probate & a Florida divorce proceeding work hand-in-hand after the death of one of the parties to the Florida divorce. This case is a good example of how Florida divorce law and Florida probate law intersect and overlap.

HUSBAND FILES FOR FLORIDA DIVORCE : WIFE SAYS ” YES, ME TOO ! “

Husband and wife were married in 1988
evidently it was not the first marriage for the husband
in January, 2006, the husband filed for divorce in Florida
the wife filed a counter petition for divorce as well

HUSBAND HAS TERMINAL ILLNESS — can you get a divorce now to cut off Florida inheritance rights ?

Husband was suffering from a terminal illness
husband filed a motion for bifurcation of the Florida divorce proceedings
husband wanted the Florida trial court to enter a judgment of divorce—- and deal with marital property distribution at a later time

FLORIDA COURTS GRANT DIVORCE WHEN DEATH MAY BE IMMINENT

In Florida, many times Florida trial lawyers will file a motion to bifurcate, asking the Florida court to hear some legal issues now, and to keep the remaining issues for a later date. This is often done when there is a time constraint, or there is some urgency. A pending Florida divorce action, while someone may have a terminal illness is a common example. The parties seek a judgment from the Florida court ending the marriage, knowing that they will deal with dividing up the property at a later time. Many times it will involve the Florida estate of the spouse who passes away. That’s what happened in this recent Florida case.

When you have the death of somebody who is a party to a Florida divorce, or Florida lawsuit, there are unique probate and other legal issues. Generally, a Florida widow has very valuable property rights to the estate of the spouse that passes away. These inheritance rights can be terminated upon a Florida court granting a divorce, what is referred to as a dissolution of the Florida marriage. Of course, the surviving former spouse still has a claim to marital property from the divorce, from the former marriage, which a Florida trial judge will rule on. When a party to a Florida lawsuit dies, Florida trial lawyers generally file a “suggestion of death“, and then a motion for substitution of parties: you bring in the Florida personal representative of the estate of the deceased party.

FLORIDA PERSONAL REPRESENTATIVE OF ESTATE COMES IN TO DEAL WITH DIVORCE

The Florida trial court entered a judgment dissolving the marriage on May 24, 2006.
Now they were divorced.
The Florida judge reserved jurisdiction to handle other issues, and to divide the property.
The husband died on July 26, 2006.
One of the husband’s children started Florida probate proceedings

FLORIDA PROBATE & FLORIDA DIVORCE

while the Florida divorce lawsuit was pending, one of the husband’s children filed a petition for the administration of his Florida estate — this is what is referred to as “opening up Florida probate“
the son was appointed personal representative of the Florida estate, and he began the probate process
so, now, you had a divorce court, and a Florida probate court working in conjunction with one another

WIFE FILES STATEMENT OF CLAIM IN THE FLORIDA PROBATE

the wife filed a statement of claim in the Florida probate proceeding – – – in the Florida estate
the Florida estate, and the wife, were waiting for a court to determine the division of marital property

WHICH COURT DIVIDES UP THE FLORIDA PROPETY ? —- the Florida Probate Court or the Divorce Court

Over four years passed, and the marital property still wasn’t divided.
The Florida divorce court set the matter for hearing on October 17, 2011
the Florida probate court terminated the Florida probate proceedings on May 17, 2011
The divorce court ruled that it did not have jurisdiction – – – it said that the Florida probate court had jurisdiction over the husband’s assets

The Florida appeals court held that the divorce court, not the Florida probate court, had jurisdiction and authority to determine the wife’s claims of Florida property from the divorce.