Published: Sep 19, 2022

Updated: Dec 8, 2023

Estate Planning for Same-Sex Couples in Florida

[1] Nancy J. Knauer, LGBT Older Adults, Chosen Family, and Caregiving, 31 J.L. & Religion 150, 158-159 (2016).

[2] Id. at 158.

[3] Id. at 159.

[4] Id. at 166 (indicating “ . . . LGBT older adults cannot rely on the legal default settings in place in the areas of estate planning and decision making to protect their interests and reflect their priorities. The LGBT community has placed strong emphasis on advance planning as a means to protect chosen family, especially unmarried partners. Studies show that more LGBT older adults have wills and durable powers of attorneys than their non-LGBT peers . . . “).

[5] Obergefell v. Hodges, 576 U.S. 644 (2015).

[6] In re Kaufmann’s Will, 247 N.Y.S.2d 664 (N.Y. App. Div. 1964).

[7] See Kyle S. Schroader, A Brief History of Pre-Obergefell Same-Sex Estate Planning: Adult Partner Adoption, Kentucky Law Journal (Sept. 16, 2022, 10:07 AM), https://www.kentuckylawjournal.org/blog/index.php/2018/09/27/a-brief-history-of-pre-obergefell-same-sex-estate-planning-adult-partner-adoption.

[8] Kaufmann’s Will, 247 N.Y.S.2d at 667 (“Weiss took full charge of the establishment, its furnishing, the employment of help and the maintenance of the household. All mail and incoming telephone calls were routed to and through Weiss”).

[9] Id. (“[Kaufmann] and Weiss traveled to Paris in 1950 for a few months; to Europe, West Indies, the Virgin Islands, Haiti, Greece and other countries during 1952 and 1953 and around the world in 1956”).

[10] Id. at 670 (“Thereafter, until Robert's death, Weiss had the power to draw against all Robert's bank accounts. In 1951 Weiss acquired a general power of attorney from Robert. Weiss had unrestricted access to Robert's safe deposit box”).

[11] Id. at 677 (quoting a letter mailed by Kaufmann to his attorney) (“I now wish you to make a new, very simple will for me, leaving all property, real estate, tangible assets, etc., plus a beneficial life interest in the Kay Jewelry Store stocks . . . to Walter A. Weiss”).

[12] Robert Kaufmann was apparently a very meek and insecure person, but became more assertive and independent after befriending Weiss.  See Id. at 671 (summarizing, then quoting, a letter from Kaufmann explaining how his life was at a “nadir” before Weiss uplifted him). This newfound independence, apparently catalyzed by Weiss, was the basis for the alleged undue influence. See Id at 688 (Witmer, J., dissenting) (“Contestants charge that Weiss was the cause of their business differences with testator. They assert that Weiss was the mastermind behind all of testator's demands in his business relations with them, and who in the background prepared the letters which testator sent to them, many of which are in evidence. They also contend that Weiss used the differences thus arising between testator and his brothers as a means of encouraging testator to change his will in Weiss' favor; and there is evidence that Weiss had a hand from time to time in advising testator's attorneys as to testamentary changes testator desired”).

[13] Schroader, supra.

[14] See In re Cowell, 71 N.Y.S. 3d 450, 451 (N.Y. App. Div. 2018) (finding that a decedent’s brother was precluded from becoming the distributor of her estate because the decedent had been adopted by her same sex partner).

[15] In re Guardianship of Atkins, 868 N.E. 2d 878 (Ind. Ct. App. 2007).

[16] Id. at 881.

[17] Id.

[18] Id.

[19] Id at 882.

[20] Id. at 882-883.

[21] Id. at 888 (“The judgment of the trial court is . . .  remanded with instructions to grant Brett visitation and contact with Patrick . . . “).

[22] See Fla. Stat. § 732.101 (2022) et. seq. for Florida’s intestate successions laws.

[23] Russell v. Pasik, 178 So.3d 55, 59 (Fla. 2d DCA 2015) (“. . . the law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights . . . as the biological or legal parents”).  

[24] Compare Russell v. Pasik, 178 So.3d 55 (Fla. 2d DCA 2015), with In re Cowell, 71 N.Y.S. 3d 450 (N.Y. App. Div. 2018).

[25] Fla. Stat. § 732.101 (2022) (“Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code”).

[26] Fla. Stat. § 732.502(1)(b) (2022).

[27] Fla. Stat. § 732.502(c) (2022).

[28] Fla. Stat. § 709.2102(9) (2022).

[29] Fla. Stat. § 709.2104 (2022).

[30] Fla. Stat. § 709.2105(2) (2022).

[31] Fla. Stat. § 709.2105(2) (2022).

[32] 15 Fla. Prac., Elder Law § 27:28 (2021-2022 ed.).

[33] Fla. Stat. § 765.302(1) (2022).

[34] 15 Fla. Prac., Elder Law § 27:46 (2021-2022 ed.).

[35] Fla. Stat. § 765.202(1) (2022).

[36] Fla. Stat. § 765.202(5) (2022).

[37] See 14 Fla. Prac., Elder Law § 10:39 (2021-2022 ed.).

[38] See Id.

[39] See 14 Fla. Prac., Elder Law § 10:39 (2021-2022 ed.).

[40] See Fla. Stat. § 744.3045(1) (2022).

[41] Fla. Stat. § 744.3045(5) (2022).

[42] Fla. Stat. § 744.3045(7) (2022).  


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