When I first heard of this case, I thought it was an interesting but isolated case– the sort of thing that happens but is not common. I may have been wrong. In one of those serendipitous coincidences, I met a lady at a speaking engagement who told me about a situation involving several of her friends. Several couples at a club that she belonged to had recently been “married” by a notary who also belonged to the club. They had ceremonies, but failed to get licenses. Apparently, the notary informed them that a license was not necessary. WRONG!
Florida outlawed common law marriages in 1967. Since then no amount of playing house together can make you husband and wife in Florida, as discovered by Kimberly Hall and Roberto Maal. Ms. Hall and Dr. Maal had the full ceremony, represented to the world that they were husband and wife, purchased a home as “husband and wife,” and even had two children. However, one small detail was never attended to; i.e., they failed to obtain a marriage license, solemnize the marriage before an acceptable official, and return the license to the clerk of the court for recording. The completed step one (i.e., they got a license), but failed to complete steps two and three. See, Fla. Stat. sections 741.01 to 741.212 Years later when trouble arose, Ms. Hall was denied a “divorce” because she and Dr. Maal were never married.
A failure to obtain a license and be properly married can have serious consequences in a number of situations besides divorces. In a divorce, it can cause a loss of rights to marital property and alimony. Moreover, in an estate, it could cause a loss of rights to a life estate in a homestead, an elective share, and family allowance. If there is no marriage, then there is no surviving spouse. If the purchasers of real property are not married, then they do not acquire the property as tenants-by-the-entireties and have no creditor protection and no survivor rights. The forgotten marriage license is the opposite of the forgotten spouse problem. Either one is serious though.
The time limits in probate cases can be unforgivingly short. For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.
The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative. The Third District Court of Appeal held that it did apply. Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred. What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal. The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.
The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate. Most of the time limits are much shorter than in other litigation. All claims against a decedent are barred two (2) years after the date of death. Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.
While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida. Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA. But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis. This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion. But what about a trial court in one of the other three (3) DCAs? Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one. Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach. Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law. At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.
Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?” that the lawyer scratches her head and says, “Well, I’ll have to do some research.”? And later reports that “the law is unclear” or “conflicting.” Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.
Michael Jackson was as much a corporation as a person. Like any major celebrity or company, he had ongoing litigation and business operations. “The National Law Journal” has an article detailing the myriad suits Jackson and his company, MJJ Productions, had at the time of his death. These suits will continue being litigated by his corporation or his estate. The corporate suits will proceed with nary a hiccup. The corporation’s existence is unaffected by Jackson’s death. Unlike a very small corporation that may be little more than a one man band, MJJ Productions probably has full time professional management. That management will continue to run the company. However, there may be issues as to who runs MJJ. Assuming Jackson owned most, if not all, of the shares of MJJ, the person who controls the estate and eventually his heirs will have control of MJJ as well as his other personal assets and business.
It is unknown whether Jackson had a will or a trust (or trusts). According to one attorney,most celebrities have living trusts. If he has a will or if he died intestate, there is likely to be a delay while a personal representative (a/k/a an executor) is appointed. If he had a living trust, then the successor trustee can more or less immediately take control of all the assets in the trust. However, if he had some assets in the trust and some not in the trust, then he may still need a personal representative to manage assets outside the trust.
However, Jackson’s estate may earn even more than Jackson. Even as I write this, radio stations and TV stations are playing Jackson songs and videos and the royalties are pouring in. Itunes is probably sellng Jackson’s music at a record rate and CDs and posters are flying off the shelves at WalMart. This income is likely to go further without Jackson to spend it faster than it comes in. It is likely to support an army of lawyers and accountants and still be able to pay debt and a legacy for his three (3) children. Elvis Presley’s estate earned $52,000,000.00 last year, which may be more than Jackson earned while living. Jackson’s estate may do better than Presley’s for the next year or two. On the other hand, a rush is on for refunds of the tickets sold for his upcoming concert tour. At least some of that is insured, but one wonders whether there will be suits for the lost profits and money spent in expectation of the tour.
We won’t know for some time just how things will shake out. One thing is for certain, whether Jackson’s estate proves to be flush or broke, his confused finances and personal life are likely to be a bonanza for a cadre of lawyers on both sides of the issues.
I recently had conversations with a couple of lawyers who also practice probate litigation. We agreed that probate litigation is often the result of poor communication. Specifically, parents tell their children what the children want to hear or use ambiguous phrases like “don’t worry you’ll be taken care of.” The same goes for other relatives and friends who might be expected to be remembered by you with money or assets when you pass away.
Here is one example of muddled communications — A decedent’s nieces and nephews sued their aunt’s beneficiaries claiming undue influence. The nieces and nephews said their aunt called the beneficiaries the “cleaning lady” and “the lawnman.” The beneficiaries said the decedent disliked her nieces and nephews, but the nieces and nephews swore the aunt loved them and promised to “take care of them” when she died. I believe both sides were telling the truth. The decedent had a prickly, cranky, insecure personality and had told each side what they wanted to hear and whatever made her feel important. Coupled with the fact that she waited to do her estate planning until she was on the way to the hospital where she died, it was a perfect recipe for a lawsuit.
Children often overestimate the wealth of their parents when they don’t know what their parents actually own. They may not realize that dad obsesses over MSNBC and Bloomberg because he enjoys it and that $100,000.00 in 10 or 20 stocks is all he has. They think he’s obsessively monitoring his millions. A phrase like “don’t worry I’ll take care of you” is ambiguous enough to cause problems. For the parent it may mean, “I’m leaving you $10,000.00,” but for the kids it may mean. “Don’t worry I’ll make sure you’re set for life.”
Here are some tips to make sure your legacy to your heirs and beneficiaries isn’t a lawsuit:
Be clear. Make sure that your children and other beneficiaries know what to expect from you at your death.
Don’t just tell people what they want to hear. You don’t have to tell people you hate them, but you shouldn’t misrepresent your relationships with others either/
Don’t wait until the last possible moment to meet with a lawyer and plan your estate.
Don’t wait until you’re incapable of making your appointments and arrangements to visit a lawyer before planning your estate.
If you remarry and have children from a previous marriage, get a prenuptial. If you later decide to ignore or revoke the prenuptial, do so in writing.
Don’t share your estate plan with someone or promise to “take care of them” and then set up all of your accounts and beneficiary designations so they pass outside of the estate plan that leaves everything to someone else.
Don’t make misleading or false promises to people you don’t intend to “take care of” in your estate plan.
This list is far from comprehensive. The bottom line is to be honest with yourself and others. Do what you can to not make misleading statements or promises or to give false hopes or expectations. You may save your heirs and beneficiaries a lot of headaches.