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FLORIDA ESTATE RIGHTS FOR GAY COUPLES IN FLORIDA: what will it take to overturn DOMA in Florida and give same-sex couples inheritance rights?

Uncategorized Dec 19, 2013

The Defense of Marriage Act is history. The Defense of Marriage Act is also known as DOMA.   DOMA is history.

But what will it take to overturn DOMA in a state like Florida, which has a constitutional amendment, and other state laws, which restrict the rights Florida citizens who are gay? Even though the United States Supreme Court overturned DOMA in June 2013, same-sex marriages, gay marriages, are presently not permitted in the state of Florida.

What does this mean for gay people who got married in another state, like Massachusetts, Hawaii, or California? What about the Florida inheritance rights and Florida estate rights which widows receive in Florida?

What about the very valuable property rights, and probate rights, which widows receive throughout the probate process in a Florida probate court? Will gay widows, gays surviving spouses, be entitled to those same Florida inheritance rights and same Florida estate rights as non-gay couples? Or, will the Florida legislature, or Florida probate courts, maintain their DOMA-like laws which restrict gay couples from having the same inheritance rights as straight couples? Someday, in the very recent future, a gay surviving spouse will eventually obtain the same Florida inheritance rights and the same Florida estate rights is a straight surviving spouse.

To get there, a probate lawyer representing a gay couple, or a gay surviving spouse, will still have to fight DOMA and theDOMA-like Florida laws in probate court. Because Florida does not recognize same-sex marriages, or marriages between gay people. Florida will not grant inheritance rights to gay surviving spouses. These Florida estate rights, and Florida inheritance rights, are very valuable.

If you are a straight, heterosexual Florida widow, you have very valuable Florida property rights in and to the Florida estate, the probate, and the money of your husband or wife who just died. These valuable Florida inheritance rights include rights to the estate, whether or not you are disinherited, and whether or not you are even mentioned in the last will of the Florida resident.  The widow’s Florida inheritance rights includes a family allowance, which may be up to $18,000 during the Florida probate process, a right to an automobile and certain personal property, rights to a fixed 30% share of the estate under certain circumstances, or even rights to a fixed 50% share of the estate under other circumstances. That means a spouse, a widow, gets a share of the bank accounts, the stocks and bonds, the real estate, just about everything !  (The only exception is if inheritance or property rights were signed away in a prenup.)

A Florida gay widow may also have rights under federal law to retirement accounts. These state and federal rights for a widow may be exercised even if your late spouse did not have a last will, or if the will leaves you nothing, or is an old will which leaves property to someone else, or if there was a will which was signed before you got married.

Someday, in a Florida probate court, whether it’s in Palm Beach, or Fort Lauderdale, or somewhere else, a gay widow is going to try to claim Florida inheritance rights, as the surviving widow of the deceased Florida resident. Expect a fight from others, possibly the deceased Florida resident’s parents, children, or siblings.   Gay widows should expect a Florida legal battle from their gay partner’s, gay spouse’s, adult children.  This will be another chapter in the ongoing inheritance war.