Does a beneficiary's death divest his estate of its interest in the assets of a trust that remained to be distributed?

Bryan v. Dethlefs, --- So.2d ----, 2007 WL 1425499 (Fla. 3d DCA May 16, 2007)

In this case the beneficiary of his predeceased grandfather's trust died before the trust assets were fully distributed to him.  The subsequent litigation revolved around this question: in order to vest under the trust, does the following trust clause require the beneficiary to be living at the time of the settlor's death, or upon full distribution of his inheritance under the trust?

Distribution to Grandson: Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my Grandson, ROBERT R. BIZZELL, if he is living at the time of distribution. (emphasis added).

Miami-Dade County Probate Judge Arthur L. Rothenberg ruled the vesting event was the settlor's date of death, and the 3d DCA affirmed.

Lesson learned: when in doubt, it's vested - NOT contingent

Rules of construction can be useful tools because they tip the scales in favor of a certain interpretation when the subject text is less than crystal clear.  That's what happened in this case.  The following excerpt from the linked-to opinion provides useful guidance with respect to the rules of construction applicable if there is any doubt that an inheritance vests immediately or is contingent upon some future event:

[T]he law favors the early vesting of estates. Lumbert v. Estate of Carter, 867 So.2d 1175, 1179 (Fla. 5th DCA 2004)(citing Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925)). As this Court stated in Estate of Rice v. Greenberg, 406 So.2d 469 (Fla. 3d DCA 1981), any doubt as to whether an interest is vested or contingent should be resolved in favor of vesting:

This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator.

406 So.2d at 473 (quoting Krissoff v. First Nat. Bank of Tampa, 32 So.2d 315 (Fla.1947)). Accordingly, no estate should be held to be contingent “unless very decided terms are used” and “unless there is a clear intent to postpone the vesting.” Sorrels, 89 Fla. at 467, 105 So. at 110. Indeed, “[t]he presumption that a legacy was intended to be vested applies with far greater force, where a testator is making provision for a child or grandchild, than where the gift is to a stranger or to a collateral relative.” Sorrels, 89 Fla. at 467, 105 So. at 110.

Finally, if a trust vests at the settlor's death, then “the death of the beneficiary before it becomes payable does not cause the legacy or devise to lapse.” Sorrels, 89 Fla. at 465, 105 So. at 110. Similarly, where a settlor intends a trust to vest upon the testator's death, benefits accrue to the beneficiaries from the time of the death, not the subsequent time that the trust was funded. In re Bowen's Will, 240 So.2d 318, 320 (Fla. 3d DCA 1970).

How to validly devise a life estate in a tenenats-in-common real property interest

Morgan v. Cornell, --- So.2d ----, 2006 WL 2987107, 31 Fla. L. Weekly D2632 (Fla. 2d DCA Oct 20, 2006)

Estate planning and probate litigation are two sides of the same coin.  The planner needs to understand the underlying substantive property rights being conveyed and how to draft documents that accurately describe what those property rights are and to whom they are being conveyed.  In the event of a dispute, the litigator needs to understand the same: what are the underlying substantive property rights being disputed and does the operative document effectuate a legally enforceable conveyance.

That's why this case is equally instructive to the planner and the litigator.  The litigation revolved around whether the decedent had validly devised a life estate in two properties he owned as tenants-in-common with his girlfriend.  The properties at issue were a home in Naples, Florida and a second home in New Hampshire (i.e., the amount in controversy likely exceeded seven figures).  The decedent's children argued -- and won at the probate-court level - that the devise was invalid and thus girlfriend got nothing.  Girlfriend argued the opposite . . .  and won where it really counted, before the 2d DCA, which reversed the probate court's order.

Here's how the 2d DCA articulated the issue on appeal:

The specific devises at issue state:

If I own the home [in New Hampshire/Florida] at my death, I leave said home and real estate together with the contents therein to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple as Tenants in Common to her children ···, per stirpes.


The personal representative of Mr. Cornell's estate, his daughter Elizabeth L. Cornell, filed a petition seeking construction of these conditional devises, alleging that the condition-“If I own the home”-is unclear in extent, nature, and meaning. On one hand, the word “own” could be read to mean “to the extent I own the home,” so that the specific devises would be effective for whatever interest the testator possessed at his death. On the other hand, the word “own” could be interpreted more strictly, so that the condition would be fulfilled only if the testator were the sole owner of each home at the time of his death. If the second interpretation were operative, the condition would fail and the testator's interest in the homes would become part of the residuary estate and pass to his three children.

The 2d DCA rejected the children's interpretation -- and the probate court's order -- by holding that the word "ownership" was a broad enough term to encompass a tenants-in-common interest.  This is the part of the 2d DCA's opinion that is most instructive to future planners/drafters and litigators because it articulates in clear, unambiguous language what a "tenants-in-common" interest is and how it can be devised:

The parties in this case agree that Mr. Cornell and Ms. Morgan owned the real properties as tenants in common. When two persons own property as tenants in common,

A and B each owns in his own name, and of his own right, one-half of Blackacre···· It means that each owns separately one-half of the total ownership···· Each is entitled to share with the other the possession of the whole parcel of land. Each may transfer his undivided one-half interest as he wishes so long as the transfer does not impair the possessory rights of the other tenant in common. Each may transfer his undivided one-half interest by will···· The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land & Future Interests 58-59 (1966). The estate of a tenant in common is both inheritable and devisable. Tyler v. Johnson, 61 Fla. 730, 55 So. 870 (1911).

As a tenant in common, Mr. Cornell owned a physically undivided part of each entire parcel in New Hampshire and in Naples. Without question, Mr. Cornell did “own” the property at the time of his death; the ownership condition was fulfilled; and each devise validly passed a life estate in his undivided half interest to Ms. Morgan-just as he intended.

Ambiguous Drafting Leads to Litigation over Definition of a Decedent's "Heirs at Law" under Florida Law

Karasek v. William J. Lamping Trust, 2005 WL 2086183 (Fla. 4th DCA August 31, 2005) (Trial Court Reversed)

Precise drafting is the single most effective barrier against costly probate litigation. What makes estate planning documents especially challenging for attorneys is that the careful drafter needs to consider the very real possibility that the Will or Trust he or she drafts today could become a disputed matter decades in the future (or even hundreds of years in the future under Florida's new rule against perpetuities statute, see F.S. § 689.225). That's what happened in this case. A Will that was executed in 1967 became the subject of litigation in 2003 . . . 36 years after the date it was signed!

The 1967 Will contained a "default" clause common to any well drafted Will. Essentially, the document directed that in the event the testator's children predeceased his surviving spouse, upon the death of his surviving spouse the trust corpus was to be distributed to the "heirs" of his deceased children. What was unclear was whether the 1967 definition of heirs was applicable or the 2003 definition of heirs was applicable. The Fourth District Court of Appeals ruled that under Florida law the presumption is that the testator intended the term "heirs at law" to be construed under the statutes in existence at the time the Will was executed, i.e., 1967.

The entire dispute could have been avoided if the default clause had stated what law was applicable, as the following example does:

If any property is subject to this article under another provision of this Trust Agreement, the Trustee shall distribute that property to my heirs at law determined under Florida law then in effect as if I had died intestate and unmarried on that date as a resident of Florida.

Dependent Relative Revocation doctrine falls short in attempt to fix an estate plan gone awry

Rosoff v. Harding, 2005 WL 1163101 (Fla. 4th DCA May 18, 2005) (Trial Court Affirmed)

Sometimes a belts-and-suspenders approach to estate planning is not just overkill, it actually ends up doing more harm than good. In this case "Brother" wanted to look out for his sister. So far, so good. So Bother's Will creates a testamentary trust for Sister's life-time benefit and gives her a testamentary power of appointment over the trust corpus. Again, so far so good. But just in case Sister might be victimized, Brother's Will required that any exercise of Sister's power of appointment within 18 months of her death had to be witnessed by a corporate officer of his Corporate Trustee. In theory, this last clause probably sounded like a good idea. In practice, this belts-and-suspenders approach resulted in unintended consequences that the Fourth DCA characterized as "extremely unfortunate" and "unintentional," but beyond the "court's power to correct."

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Dead Body is Not "Property"

Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) (TRIAL COURT AFFIRMED)

Commenting that this case presented an issue of "first impression in Florida," the Fourth DCA affirmed a trial court's refusal to enforce burial instructions in the decedent's Will based on clear and convincing evidence presented by his wife of forty years and others that he had changed his mind since executing his Will. The Fourth DCA held that a testator's body is not considered "property." As such, the general rule of construction found in Probate Code Section 732.6005(2) requiring Wills in Florida to be deemed to pass all property that the testator owns at death does not apply to bodily dispositions. Instead, the 4th DCA formulated the following rule regarding the disposition of a Florida testator's body:

[A] testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.

Will Construction Statute Applied to Testamentary Trust

Lumbert v. Estate of Carter, 867 So.2d 1175 (Fla. 5th DCA Feb. 27, 2004) (TRIAL COURT REVERSED)

Molly Joy Carter ("Mom") executed a will on February 23, 1994 that left all of her $1.5 million estate in trust for her only child, Lisa Lumbert ("Daughter"), until Daughter reached certain ages, at which time the trust assets were to be distributed to her outright and free of trust.

Mom died and her will was admitted to probate on August 30, 2000. Fourteen months later Daughter died on October 15, 2001 at age 41. At the time of Daughter's death, most of Mom's $1.5 million estate was still being administered, so only about $100,000 had been transferred to Mom's testamentary trust for Daughter. Mom's brothers and sister argued that Article IV E. of Mom's trust for Daughter should control what happens with the rest of Mom's estate, which would result in most of Mom's estate going to them. Daughter's surviving husband argued that Articles IV D. of Mom's trust should control, which would, not surprisingly, result in most (i.e., two-thirds) of Mom's estate going to him.

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