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Florida Probate Litigation and Disclaimers

Uncategorized • Jun 12, 2020
post about Florida Probate Litigation and Disclaimers

What is a disclaimer? When might you be asked to sign a disclaimer in your Florida probate case? What should you do if a disclaimer is presented to you by the opposing side? How can a probate lawyer help you to decide whether or not to sign a disclaimer? What constitutes a valid disclaimer in Florida? A January 23,2019 Third DCA opinion discusses a disclaimer in a Florida inheritance case, and what makes a disclaimer valid or invalid.

Know What You Are Signing

This may seem obvious but, before you sign ANYTHING, make sure that you read it and understand it! You would be surprised how many times our West Palm Beach probate law firm gets calls from beneficiaries who accidentally signed away their rights. Sometimes, these beneficiaries don’t even realize what they did until it is too late. In the probate world, disclaimers are common. For example, if a beneficiary does not want to have interest in , or inherit, a property, they will most likely be asked to sign a disclaimer. Before receiving an inheritance, beneficiaries are also usually asked to sign a disclaimer. In order to avoid any mistakes, and to avoid accidentally giving up valuable inheritance rights, you should have your Palm Beach inheritance lawyer review the disclaimer and go over it with you.

Florida Law: Disclaimer of Property

Florida Statute 739.104(3) explains what is required for a Florida disclaimer of property to be effective. The following must be met:

  1. The disclaimer must be in writing
  2. The disclaimer must declare that the writing is a disclaimer
  3. The disclaimer must describe the interest or power being disclaimed
  4. The disclaimer must be signed by the person making the disclaimer
  5. The disclaimer must be witnessed and acknowledged by a manner provided for by deed of real estate
  6. The disclaimer must be delivered in the manner provided in section 739.301 of the Florida Statutes.

Lee v. Lee

Lee v. Lee, a January 23,2019 Third DCA opinion, is a great example of Florida probate litigation involving a disclaimer of property. Here, the dispute was about whether a disclaimer, which was signed by an heir, was valid or invalid.

The disclaimer in question did not specifically identify the real property being disclaimed. The probate court determined that the disclaimer was both legally insufficient under section 739.104 (3) of the Florida Statutes and violative of the statute of frauds because of the missing identifying information.

However, the appellate court disagreed. The Third DCA explains that, although the missing legal description of the property renders the disclaimer incapable of recordation, the lack of the legal description does not otherwise affect the validity.

If you are involved in a West Palm Beach probate case involving a dispute over a disclaimer of property, you may want to read Lee v. Lee in its entirety. If you want to interview a Florida litigation law firm, please call (561)514-0900 ext.101.