By Alan S. Gassman, Esq., Kenneth J. Crotty, Esq., and Christopher J. Denicolo, Esq.
Gassman Law Associates, P.A., Clearwater, Florida
2015 brings with it a number of new and many tried and true opportunities and challenges for Florida-based clients. This article will review the most common questions, opportunities, and challenges faced by successful Floridians and their tax, legal, and financial advisors.
Confusion Over the January 1, 2015 Limited Liability Company Law Changes
Florida overhauled its limited liability company statute with significant changes from the prior statute that do not follow the Revised Uniform Limited Liability Company Act.
Any Operating Agreement or Articles of Organization that use the term "Managing Member" should be reviewed without delay, because the legislature saw fit to override Operating Agreements that provide that a Managing Member can act without the consent of a majority-in-interest of members. Therefore, many Managing Members will find that the authority they were granted no longer applies.
The chart below shows three (3) categories of Operating Agreements, how they are impacted by the new Act, and possible actions to take with respect to each. Members who are Managers may continue, but "Managing Members" may lose authority that was given to them under Operating Agreements.
THE 3 LLC MANAGEMENT CLASSIFICATION ANALYSIS:
ESSENTIAL CATEGORIES TO CONSIDER
|LLCs With Managing Members(where one or more members are Managing Members)THE LLC ACT MAY OVERRIDE THE OPERATING AGREEMENT SO THAT THE MAJORITY OF MEMBERS CAN OVERRIDE THE MANAGING MEMBER DEPENDING UPON THE TERMS OF THE OPERATING AGREEMENT AND/OR ARTICLES OF ORGANIZATION.Unless the Operating Agreement or Articles of Organization provide "words of similar import" to the LLC having a manager or being managed by members, the LLC will be treated as a member-managed LLC.Fla. Stat. §605.0407(1)(b) specially provides that "words of similar import" do not, in and of themselves, include the terms Managing Member or Managing Members.||Manager-Managed LLCsNO CHANGE UNDER NEW ACTPursuant to Fla. Stat. §605.0407(1) an LLC will be manager-managed if the Operating Agreement or Articles expressly provides (1) that the LLC is manager-managed, (2) that the LLC is or will be managed by managers, (3) that the management of the LLC is or will be vested in managers, or (4) the Operating Agreement or Articles of Organization "include words of similar import" to items 1 through 3 above.||Member-Managed LLCsNO CHANGE UNDER NEW ACTPursuant to Fla. Stat. §605.0407(1) an LLC will be member-managed unless the Operating Agreement or Articles expressly provide that the LLC is a manager-managed LLC.|
|If all of the members are Managing Members, then essentially there will be no change to the management of the LLC under the new Act.|
Going forward, all Florida LLC Operating Agreements should simply refer to Managers, and not to a "Managing Member."1
If all of the members are Managing Members, then under the old Act all of the members would be treated as Managers. Under the new Act, the LLC will be treated as a member-managed LLC and all of the members will continue to have a voice in the management of the LLC. Therefore, in situations where all of the members are Managing Members there essentially will be no change to the control of the LLC even though the LLC will no longer be manager-managed.
Prevent Fraud by Using the Statement of Authority Law
When real estate is titled in the name of an LLC, what prevents a thief or unauthorized member or manager from transferring title or mortgaging the property without following the proper procedures under the Operating Agreement? For confidentiality purposes, many LLCs are formed in states such as Colorado and Delaware, which do not require publication of the name of the manager. How does one prevent affiliated or non-affiliated ne'er-do-well parties from posing as managers and forging Operating Agreements?
A Statement of Authority can be filed with the Secretary of State, and recorded in the county where real estate is held, indicating that there can be no transfer or encumbrance without written consent of a specified individual or company.2 The Statement can specify that consent is needed before any transfer or mortgage of real estate occurs, and will expire five years after being filed.3
Homestead Tax Protection Confusion
The rules concerning Florida Homestead Tax Exemption, which is normally $50,000, and also prevents escalation of appraised value by the greater of the Consumer Price Index (CPI) or 3% per year, can cause significant confusion and loss of opportunities.4
The homestead must be the primary residence of the owner or owners by December 31 of the year before the exemption begins to apply, and the owner or owners must either (a) appear at the county courthouse in the county where the homestead exists on or before March 1 of the following calendar year to file the appropriate paperwork, under penalty of perjury, or (b) follow whatever other instructions are provided by the county.
In August, the property appraiser sends each property owner a Notice of Proposed Property Taxes, or TRIM (Truth-in-Millage) notice, and the owner has 25 days from the receipt thereof to contest the proposed value.5 There are companies and professionals who regularly represent property owners in these efforts. Failure to contest a proposed value may be a lost opportunity.
Once the value of a homestead is reduced, it can only go up by the greater of 3% or the CPI amount each year.6 Bringing the value down can have a multiple-year impact because of the 3% CPI cap, because each year the taxable value can only increase by the lesser of 3% or the CPI.
Many advisors are not aware that most commercial properties are subject to a 10% per year increase, which can be a very significant opportunity considering that many properties lost half or more of their value in 2008.
The homestead exemption can now be "ported" from one homestead to the next following logical, but not always easy to understand, rules associated therewith.
Homestead Creditor Protection Is Often Not Investigated Before the Homestead Is Purchased
In 2001, the Florida Supreme Court determined that the homestead creditor exemption trumps the Florida Fraudulent Transfer Act,7 so many debtors or potential debtors are pleased to make Florida their home, while not realizing that homestead protection may be limited to half an acre within the city limits (even when owned by a married couple or two other people together), and that inconsistent uses within the city limits can cause loss of the homestead creditor exemption.
The protection applies for up to 160 acres for a homestead outside of city limits, and there is case law supportive of having substantial non-homestead uses for up to 160 acres outside of the city limits.8
While a transfer of a creditor-exempt asset into another creditor-exempt asset will not be subject to the fraudulent transfer statute, this does not apply to the proceeds of the sale of a homestead as the result of a 1962 Florida Supreme Court decision that was based on incorrect logic.9 As the result of this decision, equity from a protected homestead that is sold can only be used to purchase a protected replacement homestead or to open a designated bank account that is used to purchase a protected homestead without being considered a fraudulent transfer. While all other exempt assets can be converted into other exempt assets without being considered a fraudulent transfer, proceeds from the sale of a homestead that are transferred to a non-homestead-exempt asset will not be considered exempt.
Many advisors are not aware that the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act10 amended §522(p) and §522(q) of the Bankruptcy Code to provide for the loss of any portion of the homestead exemption exceeding $155,67511 per debtor if (a) there is found to have been a fraudulent transfer into the homestead within 10 years of filing bankruptcy (in which event such fraudulent transfer can be set aside), or (b) the homestead was not owned for at least 1,215 days (approximately 3 1/3 years) before the filing of the bankruptcy (notwithstanding that the debtor may have lived in Florida longer or fewer days than this before filing). Further, under the 730-day rule, a debtor will usually be required to have lived in Florida for 730 consecutive days before filing bankruptcy in order to have Florida law apply.12
Further, all homestead protection is lost to the extent that "ill-gotten gains" are placed into the homestead by purchase or mortgage paydown, or if the white-collar crime or malicious activity exception applies.13
Use Designated Representatives in Trust Documents
Florida law requires that the trustee of an irrevocable trust provide qualified beneficiaries with a complete copy of the trust instrument, annual trust accountings, and certain other information regarding the trust and the trustee.14 These disclosures are mandatory, in that they cannot be overridden in the trust instrument.15 Clients may not want the beneficiaries of a trust to be entitled to this information for many reasons, including to save expenses and to avoid allowing beneficiaries to have knowledge of or access to the trust or its assets.
The 2007 revisions to the Florida Trust Code allow for the appointment of a Designated Representative who can receive and monitor trust information that would otherwise be given to a specific beneficiary or beneficiaries.16 The Designated Representative has the power to waive beneficiaries' rights to annual trust accountings, to receive information regarding the trust and the trustee, and to represent and bind the applicable beneficiaries with respect to any notices, accountings, information, or reports related to the trust. Any such action taken by a Designated Representative, or any notices, accountings, information, or reports given to a Designated Representative on behalf of a specific beneficiary or beneficiaries, have the same effect as if the action was taken or the items were given directly to the applicable beneficiary or beneficiaries. The Designated Representative is not liable to the beneficiaries that he or she represents, or to anyone claiming through such beneficiary, for any actions or omissions that are made in good faith.
It may be possible to request that the court allow for a trust reformation or decanting to facilitate appointment of Designated Representatives or to allow the addition of independent parties who might later insert Designated Representatives or serve as Designated Representatives, if properly empowered. Florida law permits the judicial modification of an irrevocable trust when the modification is not inconsistent with the settlor's purpose.17 Florida law also permits the decanting of irrevocable trusts into another irrevocable trust under certain circumstances.18
Designated Representatives can be specifically nominated in the trust instrument. The trust instrument can also authorize any person or persons who are not the trustee of the trust, to select the Designated Representatives.19 The Trustee cannot act as the Designated Representative. The Designated Representative can be another beneficiary of the trust, so long as the Designated Representative is the spouse or a grandparent of the beneficiary that he or she represents, or is a descendant of the grandparent of the represented beneficiary or such beneficiary's spouse.
Failure to provide for the appointment of a Designated Representative, or at least to provide independent parties (such as independent trust protectors) with the ability to nominate Designated Representatives may be a missed opportunity. Moreover, Designated Representatives are a useful (and sometimes necessary) tool for clients who want an irrevocable trust to be a "blind" trust as to certain beneficiaries, and for clients who wish to minimize expenses of trust administration.
Forced Heirship for Homestead
The homestead forced heirship constitutional and statutory rules obliterate many estate plans every year. If the homestead owner has a minor child or children and dies, then the homestead vests immediately in equal shares in the children if there is no surviving spouse. If there is a surviving spouse then the homestead immediately vests as a life estate in the surviving spouse, with the remainder interest in equal shares to the decedent's children.20 Pursuant to a recent law change, the surviving spouse can elect to become a one-half ( 1/2) undivided owner, with the descendants equally sharing ownership of the other one-half ( 1/2) undivided interest effective upon the decedent's death.21
The above can be avoided by placing the homestead into joint ownership with right of survivorship with the spouse so that the surviving spouse would become the sole owner upon death, but this could leave the children of the dying spouse out in the cold.
A spouse can sign away the homestead inheritance rights, and also the expanse of 30% elective share rights that otherwise apply, and homestead and elective share inheritance rights can be altered by planning.22
A recent case concerning homestead issues caused some surprise. Friscia v. Friscia involved a divorce agreement requiring Mr. Friscia to allow his minor child and ex-wife to live in the home that he continued to own jointly with his ex-wife, while contractually agreeing to sell the home and divide the proceeds when the minor child graduated from high school.23 On Mr. Friscia's death, it was determined that the Florida Constitution required the homestead to pass as a life estate to the surviving spouse, with the remainder interest in the minor child, notwithstanding the Marital Agreement and Mr. Friscia's Will. The court so held because the language in the Constitution indicates that the homestead protection applies to the "residence of the owner or the owner's family."24
Homeowner and Automobile Liability Planning
Personal injury law reigns supreme as a leading Florida industry. Wet roadways, many not-so-well-lit intersections, and a large number of inexperienced and elderly drivers, coupled with the lack of pedestrian and bicycle infrastructure, result in many accidents and lawsuits.
The parent who signs to permit a minor driver to receive his or her license is considered a guarantor for all driving liability, and the owner of a motor vehicle assumes all responsibility and liability of the driver. This owner liability is normally capped at $500,000 under a statute,25 which makes it very wise to only allow drivers covered by at least $500,000 of liability insurance to use an individual's car.
Uninsured motorist coverage is also important, since the state only requires drivers to have $10,000 of liability coverage, and does not monitor or verify that coverage exists as a condition for issuance and maintenance of a driver's license.
Most homeowner liability insurance policies are issued through the state-maintained carrier, and then transferred to small private carriers.26 These policies typically do not cover accidents involving certain pool situations, dog bites, and other common but excludible liabilities. Dropdown umbrella coverage is therefore crucial. A drop down umbrella policy will cover many items excluded by underlying policies in addition to liability above and beyond the normal $300,000 limit, and car driving liability above and beyond the normal $250,000 limit.
Clients who drive and who own or rent property in two or more states will commonly have gaps in umbrella or underlying coverage and separate agencies in each state that do not know what the other is doing.
Tenancy by the Entireties Mistakes Are Common
Florida and 24 other states permit married couples to own assets jointly as tenants by the entireties, and do not allow creditors with a judgment against one spouse to lien or seize any part of tenancy by the entireties assets.27 Nevertheless, a couple can inadvertently check the right of survivorship box on an account agreement where tenancy by the entireties is offered and then lose half of the account, or mistitle deeds, contracts, companies, or other investments and forfeit tenancy by the entireties status. Also, many depositories do not permit tenancy by the entireties to apply, and accounts or assets based in non-tenancy by the entireties states will often not be protected.28 Planners should have a thorough understanding of tenancy by the entireties to avoid a number of common errors, which include having an Operating or other Agreement that is inconsistent with the six Tenancy by the Entireties Unities.
Many Florida couples establish family LLCs or limited partnerships that are primarily owned as tenants by the entireties so that assets can be placed under these entities to assure tenancy by the entireties protection. These entities are often owned in part by other family members or entities so that if one spouse dies, or a creditor is pursuing both spouses, charging order protection should apply. In the bankruptcy court case of Gillette, the court found that a mutual fund headquartered in Wisconsin (Strong Funds) could not be held as tenants by the entireties because Wisconsin does not recognize tenancy by the entireties.29
Under the Ehmann case and other decisions, an LLC interest owned by a debtor in bankruptcy will not be subject to charging order protection if the Operating Agreement between members is not an executory contract that requires the members to have ongoing obligations above and beyond simple ownership and limitations on transferability.30 Substantial executory contract obligations can be included in LLC Operating Agreements for a number of reasons.
Powers of Attorney Overhaul Creates Confusion
Florida's 2011 Durable Power of Attorney Act provides that any Florida springing power of attorney that is signed after October 1, 2011 will have no force or effect whatsoever.
The statute also provides that post-October 1, 2011 durable powers of attorney will only permit an agent to act with respect to items specifically described in the power of attorney, and will not authorize a number of acts to be taken unless they have been specifically authorized and initialed or separately signed under by the principal. This Florida law will not prevent an out-of-state power of attorney that is in compliance with the law of another state to be given full force and effect. Pre-October 1, 2011, springing powers of attorney will still be honored, but only if an affidavit delivered by the principal's primary care physician states that: (1) the physician is licensed to practice medicine, (2) the physician is the primary care physician of the principal, and (3) the physician believes the principal lacks the capacity to manage property.
Protection of IRA and Pension Benefits
The Florida Statutes provide complete creditor exemption for IRA and qualified retirement plan benefits.31 Therefore, the U.S. Supreme Court decision in Clark v. Rameker will not apply to individuals who file bankruptcy as Floridians and have state law exemptions apply, rather than the federal bankruptcy law exemptions.32
Fla. Stat. §222.21 did not always provide that inherited IRAs were exempt from the creditors of beneficiaries. In 2011, the statute was refined to expressly provide that IRA and qualified retirement plan benefits payable to a surviving spouse and other beneficiaries of the retirement plan participant or IRA owner will be creditor protected if the beneficiary resides in Florida.33 Therefore, inherited IRAs and rollover IRAs will be considered as exempt assets in bankruptcy or otherwise, as long as the beneficiary resides in Florida or another state that provides exemption for these assets.
Some commentators believe that there is a question as to whether distributions received from IRAs and qualified plans will be considered as creditor exempt.34 However, the authors believe that Florida Statute §222.21 contemplates having minimum or other distributions from IRAs and qualified retirement plans be considered as exempt assets in the same way that the withdrawal of monies from an annuity or a life insurance policy have been found to be exempt assets under a number of court decisions. Nevertheless, the authors are not aware of any court decisions on this issue, and a result-based court might be inclined to find that distributions from otherwise exempt IRAs or qualified retirement plans lose their exempt character. Thus, distributions from IRAs or qualified retirement plans might appropriately be spent first on normal living and associated expenses, while other exempt assets are retained.
Even where beneficiaries are anticipated to reside in a state that provides favorable inherited IRA and retirement account creditor exemptions, planners may want to encourage their clients to consider leaving their retirement accounts and IRAs to irrevocable spendthrift trusts that benefit their intended beneficiaries in lieu of having such retirement accounts and IRAs payable directly to the beneficiaries. Certain irrevocable trusts, known as "stretch trusts" or "see-through trusts," can receive IRA and retirement benefits on behalf of intended beneficiaries, and the trustee thereof can retain such benefits or make distributions as needed for the health, education, maintenance, or support of a beneficiary (or withhold distributions from the trust, as the trustee determines in its discretion). Such trusts will continue to be a popular and the safest (but often not the most tax-efficient) way to help assure that IRA and qualified retirement benefits are not accessible to the creditors of a beneficiary.35
Failure to Recognize the Florida Trust Exception Creditors
A third-party-settled spendthrift trust providing for the health, education, and maintenance of one or more beneficiaries can generally not be invaded by their creditors, divorce or child support claimants, or parties who provide services associated with the trust itself, except in the following situations:
(a) A beneficiary's child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance;
(b) A judgment creditor who has provided services for the protection of a beneficiary's interest in the trust;
(c) A claim of the state or the United States to the extent a law of Florida or federal law so provides.36
For this reason, it is often advantageous to situs the trust in an asset protection trust jurisdiction such as Nevada, Delaware, Alaska, or South Dakota. Alternatively, it may be effective to require that the trust situs be moved if and when there would ever be circumstances whereby an "exception creditor" might exist.37
Although some practitioners believe that Florida's discretionary trust protections trump exception creditor rights, Florida case law has not provided a clear answer regarding the interplay between these statutory provisions. Florida cases dealing with these statutory provisions are few and somewhat conflicting, creating continuing uncertainty when it comes to asset protection planning with Florida trusts. Future articles will review and discuss these interesting cases and related statutes.
Florida has a very active trust, estates and business entity Bar, and an excellent rapport between the Bar and legislatures. Stay tuned for further developments, and those surprises that always appear to occur notwithstanding efforts to have the state be a model for clarity and consistency for the country, as well as the retiring eastern seaboard and midwest as well.
Sample Designated Representative Language
6.05 Designated Representatives. It is recognized that Florida Statute Section 736.0306, effective July 1, 2007, permits the appointment and service of a "Designated Representative" who can receive information and accountings that might otherwise be required to be delivered to Trust beneficiaries. Unless otherwise set forth under this paragraph, the Independent Fiduciaries serving from time to time may select and alter the identification of one or more Designated Representatives to receive information and otherwise serve on behalf of one or more beneficiaries of this Trust or any trust established hereunder, provided that if names of specific individuals are enumerated below in this Section, then except to the extent required by statute, the first person named below shall be the Designated Representative, the second person named below shall be the alternate Designated Representative, and the third person named below shall be the second alternate Designated Representative. It is acknowledged that, pursuant to Florida Statute Section 736.0306, any Designated Representative chosen by a party other than the Grantor and not specifically named below must be a relative who is a grandparent or a descendant of a grandparent of the beneficiary, or must be the beneficiary's spouse, or the grandparent or a descendant of a grandparent of the beneficiary's spouse. Any Designated Representative will be held harmless and indemnified from any and all trusts herein established for any liability or obligation incurred in serving as a Designated Representative, except in the case of conduct that is clearly malicious and willful except to the extent required under applicable law. A Designated Representative or an alternate Designated Representative shall not be considered a fiduciary unless circumstances otherwise dictate. It is the Grantors' intent to reduce expenses and responsibilities with reference to Trust reporting and accounting to beneficiaries, and the Grantors therefore request that this Trust shall be construed and administered accordingly.
Any Designated Representative then serving may resign by giving written notice to the persons then having the authority to appoint Successor Designated Representatives and to the Trustee. Notwithstanding the above, the Grantors, by mutual consent, or one Grantor if the other Grantor is unable to participate in such decision, may replace a Designated Representative or change the successorship rules relating to Designated Representatives.
In the event that this Trust Agreement does not otherwise provide for the replacement of the retiring Designated Representative, and the Trustee requests that a Designated Representative be selected, then the following persons, in the order listed, shall have the ability, by written instrument delivered to the Trustee, to appoint a Successor Designated Representative or Designated Representatives subject to any guidelines herein imposed:
(a) The retiring Designated Representative, if such Designated Representative was appointed under Section 6.05 herein; and
(b) The party or parties named in Section 6.06 below who would be empowered to appoint a Successor Trustee if this Article otherwise fails to provide for a Successor Trustee.
1 There was significant confusion in the past, resulting primarily from Operating Agreements prepared by non-lawyers or non-specialist lawyers who were intending to have a manager separate from the actual member, but nevertheless were inadvertently calling the manager a "Managing Member," such as when a family entity or other entity was the member and an individual connected with the entity was the manager.
2 Fla. Stat. §605.0302.
3 If a Statement has been filed, which grants authority to an individual (except for transfers of real property), and a third person gives value in reliance on that Statement, then such person is entitled to rely on the Statement unless (a) the person had knowledge to the contrary; (b) the Statement had been amended or cancelled; or (c) another Statement limiting the authority had been filed.
For transfers of real property, if a certified copy of the Statement has been filed in the appropriate recording office then a person who gives value in reliance on this Statement is entitled to rely on the Statement unless (a) the Statement had been amended or cancelled and a certified copy of the amendment or cancellation has been filed with the appropriate recording office; or (b) another certified Statement limiting the authority had been filed with the appropriate recording office.
4 Fla. Stat. §196.031.
5 The TRIM notice contains the property's value as of the previous January 1, the millage rates proposed by each local government, and an estimate of the amount of property taxes owed based on the proposed millage rates. The date, time, and location of each local government's budget hearing are also provided on the notice. This provides property owners the opportunity to attend the hearings and comment on the millage rates before approval.
6 The CPI-U, which measures consumer price inflation for all U.S. residents of urban areas and accounts for about 87% of the U.S. population, is used.
7 Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001).
8 Armour & Co. v. Hulvey, 74 So. 212 (Fla. 1917).
9Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962).
10 Pub. L. No. 109-8, §322(a).
11 The original $125,000 contained in §522(p) and §522(q) adjusts based on §104 of the Bankruptcy Code, which provides that on April 1, 1998, and at each three-year interval ending on April 1 thereafter, each dollar amount shall be adjusted (1) to reflect the change in the CPI for All Urban Consumers, published by the Department of Labor, for the most recent three-year period ending immediately before January 1 preceding such April 1, and (2) to round to the nearest $25 increment. As of April 2013, the limitation is $155,675. Revision of Certain Dollar Amounts in the Bankruptcy Code, 78 Fed. Reg. 12,090 (Feb. 21, 2013).
12See 11 U.S.C. §522(b)(3)(A).
13See 11 U.S.C. §522(q)(1). In one dog of a case, In re Burns, 395 B.R. 756 (Bankr. M.D. Fla. 2008), the homestead owners' dog escaped and killed a motorcycle driver who was passing in front of the house. The plaintiff attempted to attribute the malicious intent of the dog to the homeowners, but the judge found that the homeowners did not intend to allow their dog to escape, much less jump into a motorcycle. The dog, a reddish Chow-mix named Teddy, also died in the accident. Apparently, neither the dog or the motorcycle driver were wearing helmets.
In the recent case of In re Bifani, 580 F.App'x 740 (11th Cir. 2014), it was indicated that the proceeds of a fraudulent transfer that go into the homestead of a transferee may be considered to be "ill-gotten gains" if the transferor files bankruptcy within 10 years of the transfer. Without this new court-made doctrine, debtors intending to file bankruptcy would be able to transfer monies to close friends or spouses who would buy protected homesteads and stay out of bankruptcy. This would defeat the intent of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act homestead exemption limitations.
14 Fla. Stat. §736.0813.
15 Fla. Stat. §736.0105.
16 Fla. Stat. §736.0306.
17 Fla. Stat. §736.04113.
18 Fla. Stat. §736.04117.
19 When the Designated Representative statute was first enacted in 2007, it did not prevent the trustee from selecting the Designated Representatives of the trust. However, in 2009 the statute was modified to specifically prevent the trustee of the trust from appointing the Designated Representative.
20See Fla. Stat. §732.401(1). A guardianship must be established for the property of a minor child when an amount over $15,000 is to be paid to the minor. This includes real property. This may occur through inheritance or a legal action. See Fla. Stat. §744.301(2)(c).
21 Pursuant to Fla. Stat. §732.401(2)(b), the election must be made within six months after the decedent's death and during the surviving spouse's lifetime.
22 Such planning can include establishing a revocable trust at least one year before death where at least one beneficiary must consent before the grantor can receive any distributions for elective share purposes, or by having the homestead owned by someone other than the decedent.
23Friscia v. Friscia, No. 2D13-412, 2014 BL 237040 (Fla. Dist. Ct. App. Aug. 27, 2014).
24 Fla. Const. art. X, §4 (a)(1). "There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family."
25 Fla. Stat. §324.021(9)(b)(3).
26 Citizens Property Insurance Corporation was established by the Florida Legislature and can be found in Fla. Stat. §627.351(6). The not-for-profit entity serves as a last resort insurer and ensures that there is an orderly market for property insurance for residents and businesses of the State of Florida.
27 The tenancy by the entirety protection does not apply when the IRS or the Federal Trade Commission is the creditor.
28 For example, USAA is a Texas-based company, and by contract USAA accounts cannot be classified as tenancy by the entireties accounts.
29In re Gillette, 248 B.R. 845 (Bankr. M.D. Fla. 1999).
30In re Ehmann, 319 B.R. 200 (Bankr. D. Az. 2005).
31 Fla. Stat. §222.21.
32Clark v. Rameker, 134 S. Ct. 2242 (2014). In Clark, the Supreme Court held that assets held under an IRA inherited by a non-spouse beneficiary after the death of the IRA owner are not "retirement funds," and therefore are not protected under federal bankruptcy law. Debtors who are domiciled in Florida will not be impacted by this decision if they qualify to file bankruptcy in their state of domicile (by having been domiciled there for 730 days prior to filing of a bankruptcy petition), and they elect out of federal bankruptcy exemptions and into the state law exemptions. Conversely, debtors who live in states that do not have statutes which provide protection for inherited IRAs, or debtors who are domiciled in states that do have such statutes but have not lived there for 730 days and must therefore file bankruptcy based upon a previous state of domicile, will not be able to exempt inherited IRAs as qualified "retirement funds" as a result of this opinion.
33 The language of Fla. Stat. §222.21 was modified in 2011, in part, due to the 2009 Florida Second District Court of Appeal case of Robertson v. Deeb, 16 So. 3d 936 (Fla. Dist. Ct. App. 2009). In Robertson, the court found that an inherited IRA was not considered as an exempt asset under then Florida Statute §222.21. For an excellent discussion of the Robertson case and the overarching issue of the creditor protection of inherited IRAs in Florida, see Lynch, Kristen and Griffin, Linda, The Robertson Case: A Beneficiary by Any Other Name Is Still a Beneficiary, Florida Bar J., Vol. 84, No. 4 (Apr. 2010).
34 Pratt, David and Roshkind, Lindsay, Roth IRA Conversions as an Asset Protection Strategy: Does It Always Work? Florida Bar J., Vol. 85, No. 2 (Feb. 2011).
35 Denicolo, Christopher and Gassman, Alan, Supreme Court Rules That Inherited IRAs Are Not Creditor-Exempt in Bankruptcy, Steve Leimberg's Asset Protection Planning Newsletter (June 26, 2014).
36 Fla. Stat. §736.0503(2); a recent case considered interaction of spendthrift and discretionary trust statutes.
37 It is unknown whether the full faith and credit clause of the U.S. Constitution or a court in an asset protection jurisdiction would prevent or allow an exception creditor to reach into a trust that began as a Florida trust, but it is likely that a court sitting in an offshore jurisdiction will apply the offshore statute to treat the trust as having been established in the offshore jurisdiction on the date that it was established in Florida for creditor look-back statute purposes. For example, under Belizean law, when assets are held in a properly formed Belize trust, as long as a creditor does not have a judgment against the debtor in Belize on the day the trust is moved there, the creditor will not have recourse.
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