Florida Intestacy Statute

Have you heard this statement? “If I am married, everything goes automatically to my spouse.”

There are so many issues with this statement, I don’t even know where to begin. Let’s start with the following:
Assets titled in only one name belong only to the one named. Therefore, any assets titled to the deceased, must be retitled after death with or without a Last Will & Testament. This can include bank accounts, automobiles, homes, real estate,
boats, investment accounts, retirement accounts and life insurance policies without named beneficiaries, or retirement accounts and life insurance policies with named beneficiaries who are also deceased.

A Last Will & Testament will be filed with the court and a probate case will be initiated for the re-titling of the assets to the people as prescribed by the Will as long as the Will is valid and can be proved.

If there is no Last Will & Testament, the Florida Intestacy Statute 732.101 – 732.111 prescribes who will inherit the assets. You may be very surprised to learn 732.102(3) indicates that if the decedent has lineal descendants (children) that are
not descendants of the surviving spouse, then the surviving spouse’s share of the intestate estate is one-half. You may be even more surprised to learn that if the decedent and the surviving spouse have descendants together and the surviving spouse has descendants that are not descendants of the decedent, the surviving spouse’s share of the intestate estate is one-half.

732.102 Spouse’s share of intestate estate. —The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse,
and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the
intestate estate.

Being married does not “automatically” ensure that you won’t require probate and it does not ensure that your spouse will inherit your assets. Don’t assume anything is automatic, consult with an attorney who can help you plan for and protect those you love.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

IS MY OUT-OF-STATE WILL VALID AND EFFECTIVE IN FLORIDA?

Most out-of-state wills are valid in Florida. If the will is in compliance with the laws of the state in which it was drafted, it will almost always be valid. The one major exception is holographic wills. Holographic wills are handwritten by the person whose will it is, signed by them, but is not witnessed. Florida does not recognize holographic wills, even if it is valid in the state in which it was drafted.

It is also important to consider the point that even if your will is valid in Florida, it might not be “selfproved.” A self-proved will is witnessed and signed by two witnesses and a Notary Public. If a will is not selfproved, the probate court will have to track down witnesses who will testify as to the validity of the will. This can prove exceptionally difficult if you have an out of state will that was drafted years and years ago. The
process of locating witnesses can be time consuming and expensive.

Is my out-of-state Will effective in Florida?

Be careful with the difference between valid and effective. Even if your will is valid in Florida, certain key provisions still might not be effective under the laws of this State. Specifically, Florida law can have significant effects on the following provisions of a will:

Homestead: Florida has very specific laws on how you can devise your homestead property.

Elective share: Florida provides for a spouse to have the option of taking an elective share if they are not satisfied with what you give them in your will.

In Florida, your personal representative must be either related to you by blood or be a Florida resident. If the personal representative you have selected in your will is neither of these things, this provision will not take effect.

Other Florida laws that can render sections of your will ineffective include the fact that Florida does not recognize common law marriages and it is not a community property rights state.

Florida probate laws are specific and complex. Make sure you have a Florida attorney review your will if you have moved to Florida from out of state.

A note about Wills: Florida law requires that anyone who has possession of a Will must file it within 10 days of the death of the testator with the local circuit court in the jurisdiction where the decedent would have a probate proceeding whether or not a probate proceeding is planned. If a probate court proceeding is necessary, the court will determine whether the will is valid.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision
for automatic succession of ownership at death.

Probate assets might include the following:
• A bank account or investment account in the sole name of a decedent.
• A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.
• Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset.

Probate is necessary to pass ownership of the decedent’s assets to the decedent’s beneficiaries. Probate is necessary to complete the decedent’s financial affairs after his or her death. Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived or owned property at the time of his or her death.

The Personal Representative is appointed by the judge to be in charge of the administration of the decedent’s probate estate. The Personal Representative has the legal duty to administer the probate estate according to Florida law and may be liable to the beneficiaries for mismanagement of the decedent’s probate estate. In Florida, the personal representative is the client of the probate attorney, rather than the estate or the
beneficiaries. The attorney will render services for the benefit of the personal representative who in turn represent the estate.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Disability Compensation is not a Pension benefit and is Not Means Tested, therefore the amount of income earned by the veteran is irrelevant.

.

You may be able to get disability compensation if you have a current illness or injury (known as a condition) that affects your body or mind and you meet at least one of the requirements listed below.

Both of these must be true:
1. You served on active duty, active duty for training, or inactive duty training, and
2. You have a disability rating for your service-connected condition.

AND at least one of these must be true:
A. You got sick or injured while serving in the military—and can link this condition to your illness or injury (called an in-service disability claim), or
B. You had an illness or injury before you joined the military—and serving made it worse (called a preservice disability claim), or
C. You have a disability related to your active-duty service that didn’t appear until after you ended your service (called a post-service disability claim)

Presumed disabilities
If you have a disability that’s been diagnosed by a doctor and that the VA considers to be related to your military service because of a specific aspect of that service, you may be able to get disability benefits based on this presumed disability. This usually applies to:
• A chronic (long-lasting) illness that appears within 1 year after discharge, or
• An illness caused by contact with contaminants (toxic chemicals) or other hazardous materials, or
• An illness caused by your time spent as a POW

Who’s covered?
Veterans
Qualified dependents

Compensation for Surviving Spouse and Dependents (VA DIC)
If you’re the surviving spouse, child, or parent of a Service member who died in the line of duty, or the survivor of a Veteran who died from a service-related injury or illness, you may be able to get a tax-free monetary benefit called VA Dependency and Indemnity Compensation (VA DIC).

For more information, visit the VA website at www.va.gov/disability.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

“Who will make healthcare decisions for you when you cannot make them for yourself?” and; “Who will pay your bills and manage your money if you cannot do that for yourself?” and; Who will apply for public benefits such as Medicaid
for you if you cannot do that for yourself?”.

Many people are unaware of the tragic circumstances that happen to people who do not have legal documents in place when they become ill.

During my years of practice as a Registered Nurse I was often faced with providing CPR and other live saving measures to persons that only served to prolong the natural process of dying. Ventilators for breathing. Tube feedings. How often the decision maker is ill equipped and confused about what the person would have wanted.
How often I have sat with individuals who were required to make decisions who still suffer with guilt, anxiety, and a deep sense of remorse because they are not at all certain that they did what the dying person wanted them to do.

Difficulties arise when patients in need of public benefits such as Medicaid have not appointed a Power of Attorney to handle these matters for them. Sometimes life-long family hurts and feuds result when adult children do not agree on the course of care for their parent and there is no document giving authority to any of them. It is these
cases that seem to involve the most suffering for everyone involved and the deepest hurts among family members.

Estate Planning is often thought of as providing for the distribution of one’s assets after death. Key to the Estate Plan is providing for what will happen to the person and their assets while they are still alive. I cannot stress this point enough. All too often persons who neglect this aspect of their planning end up requiring Court appointed Guardians
and Court proceedings to manage their care. Terri Schiavo is just one example of many.

Health Care Surrogate: Appoint the Person most able to make decisions in accordance with your own wishes.

Advance Directives: Give the Health Care Surrogate written directions as to your wishes in order to alleviate confusion during the decision-making process and eliminate the guilt and remorse.

Power of Attorney: Appoint the Person and give the authority for them to handle your financial affairs including the long-term care provisions required for Medicaid and other public benefit applications.

Living Will: Tells others what your personal choices are about end-of-life medical treatment.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

There is an income-allowance drawback involved with spousal refusal Medicaid planning. Essentially, Medicaid says you “can’t have your cake and eat it too”. Generally, to avoid impoverishing the community spouse (who is not applying for Medicaid), the community spouse may be entitled to a portion, or all, of the
Medicaid Spouse’s income. This income diversion is referred to as the Minimum Monthly Maintenance Needs Allowance (MMMNA).

However, DCF takes the position that if the healthy community spouse is unwilling to “support” the spouse receiving Medicaid by deploying the “Spousal Refusal” strategy, then the community spouse will not be able to access the MMMNA income supplement from the Medicaid spouse that they would otherwise be
entitled to receive.

Essentially – if Spouse X refuses to share assets with Spouse Y, Spouse X then will have to do without any additional income from Spouse Y.

Since we cannot guarantee that a future Medicaid agency won’t file suit against the spouse who refuses to support the one requiring Medicaid (although we still maintain the risk is small) and some community spouses cannot do without the Medicaid applicant’s income, there is another alternative: divorce.

Divorce Alternative for Medicaid in Florida

Using an amicable divorce as a Medicaid planning strategy requires hiring two different attorneys. If everything is agreed upon, a judge would then order the allocation of assets (e.g. most to the community spouse) and can even order agreed-upon alimony payments (from the Medicaid spouse to the community spouse). Medicaid must respect a judge’s order.

Another positive aspect to an amicable divorce in a Florida Medicaid planning context is that it would allow the former spouses to live with each other if only one needs Medicaid (if that Medicaid applicant is able to live at home).

The process of getting Medicaid can be extraordinarily complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Spousal Refusal

The spousal refusal Medicaid planning option takes several steps:

• 1. Transfer all the married couple’s countable assets into the name of the community spouse only.
• 2. After the transfer of assets, and prior to filing a Florida Medicaid application, the community spouse signs a “notice of spousal refusal” indicating his or her refusal to be obligated to pay for the Medicaid applicant’s care.
• 3. The Medicaid applicant then must sign, either individually or through a power of attorney, an assignment of support rights to the government, which in theory, allows the government to take the position that it could sue the community spouse to reimburse it for the amount it paid for the applicant’s care and support.

While no one likes the threat of a lawsuit, it should be comforting to know that Florida, to my knowledge and through my research, has never sued a community spouse who refused to make his or her assets available to the spouse who is receiving Medicaid benefits. Further, it is a generally held belief, based on precedent, that Florida will not file such a suit. The belief is based on the fact that in 1995, Florida abolished the common law Doctrine of Necessaries (which gave one spouse an obligation to financially support the other). So, as the law currently stands, there is no requirement for spouses to support one another.

While this is not a guarantee, and of course, the government could try to advance other theories, it is generally believed among the legal community that the government is unlikely to file suit. Politically, it would not look good for the government to sue an elderly person for care support. Your elder care attorney would prepare all the needed spousal refusal documents (the notice of spousal refusal and
assignment of support rights).

Tune in next month as I will be discussing draw backs to spousal refusal and an alternative strategy.

The process of getting Medicaid can be extraordinarily complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

What if a married person needs long term care but their spouse does not? What if they own their own home and they have retirement accounts and money in the bank? Do they have to spend everything before Medicaid will be available for the spouse needing long term care?

The Florida Medicaid rules are in line with the Federal law that prohibits the impoverishment of a community spouse. In other words, the cost of long-term care for one spouse does not need to make the other spouse destitute. There are multiple asset and income rules that provide for the
community spouse.

One example of a Medicaid eligibility income rule for married couples is the Minimum Monthly Maintenance Needs Allowance (MMMNA). The spouse needing long term care may be the same spouse whose income the couple has relied on to sustain themselves in the community. The rule prevents income from going to the nursing home to pay for the institutionalized spouse when that income is needed by the community spouse within certain parameters.

One example of a Medicaid eligibility asset rule for married couples is the Community Spouse Resource Allowance (CSRA). Under the 2022 CSRA, $137,400.00 liquid assets are exempt from Medicaid and is kept by the spouse who will remain in the community. Homestead property is also exempt from Medicaid.

What if the couple has income and/or assets over the Medicaid eligibility caps and CSRA amounts? I will cover these issues in the following months Newsletters, stay tuned.

The process of getting Medicaid for long term care can be very complex. It is best to consult with an attorney who practices Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Moving Out of the Nursing Home

What if you are unhappy with the care that is being provided or the location of the nursing home that your loved one is in? Can one move from one nursing home to another? What if your loved one is in a nursing home and it appears that they could live safely in an Assisted Living Facility (ALF)? Does Medicaid pay for Assisted Living? What if your loved one could go home if they had home care providers? Does Medicaid pay for home care?

When a person is in a nursing home and on the Medicaid benefit, that person pays a portion of the monthly nursing home bill and the Medicaid Institutional Care Program (ICP) benefit pays the difference to make up the 100% monthly payment to the nursing home.

The portion that the person in the nursing home pays is based on a calculation and is subject to community spouse rules. Generally, an unmarried person will pay their monthly income to the nursing home minus $130 per month that they get to keep for their personal needs. A married person would pay whatever amount was left to them as income after the allowance for the community spouse was made, and minus the $130 per month they keep for personal needs.

The Florida rules allow a Medicaid nursing home resident to move to an alternative nursing home if they wish. If you are unhappy with the facility that your loved one is in, start looking around at other facilities and making inquiries as to whether they have availability. It is simple to move your loved one into an alternative nursing home facility within the state of Florida. The Medicaid ICP benefit goes with them to the new nursing home and the nursing home bills continue to get paid with the persons monthly income
and the Medicaid ICP benefit. Moving them to another state is another matter. It can be done but it is not nearly as simple.

If it appears that your loved one could leave the nursing home and live safely in an Assisted Living Facility (ALF), start looking around at assisted living facilities and asking about availability and cost. The Medicaid ALF payment does not work the same way as it does in the nursing home. The Medicaid benefit will pay the Assisted Living Facility a portion of the monthly bill. The portion that Medicaid pays is the “medical” portion and is typically $1200 to $1400 per month. The person living in the ALF makes up the difference to cover the total monthly ALF bill using their income and other resources they may have.

You must be careful when considering moving a loved one who has Medicaid ICP. The move must be made within the Medicaid guidelines. Do not jeopardize your loved one’s Medicaid coverage by moving them without being sure of the rules. The process of making the move can be very complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

None of us want to face placing a loved one into a nursing home or needing nursing home care ourselves. In Florida, there are approximately 700 nursing homes with 84,000 beds. 73,000 Florida residents live in nursing homes. 10,000 Americans turn 65 every day. 5% of older adults (aged 65+) live in a nursing home.

Medicaid Institutional Care Program benefits are the primary payment source for nursing home care. A little-known fact is that once Medicaid is obtained for the nursing home care, one does not have to stay in the nursing home. The benefit is transferrable to an Assisted Living Facility or even to Home Care if the person will be safe in the alternative living situation.

Florida Medicaid.com lists some of the Common Mistakes Made in Trying to Qualify for Medicaid Nursing Home (ICP) Institutional Care Benefits

01. Transferring assets out of the Medicaid applicant’s name without considering the transfer rules and penalties.
02. Confusing the look-back period and the transfer penalty period.
03. Transferring the homestead to the adult children directly by way of a quitclaim deed.
04. Failing to plan for the event BOTH spouses enter a skilled nursing facility.
05. Failing to plan for the event the Well-Spouse predeceases the Nursing-Home-Spouse.
06. Making transfers without the proper authority or documentation.
07. Relying on outdated or poorly drafted durable powers of attorney (or other estate planning documents).
08. Neglecting to disclose all known income, assets or gifts.
09. Failing to include the gross income of an applicant.
10. Improper establishment and/or maintenance of a Qualified Income Trust (QIT).
11. Failing to determine whether a nursing home accepts Medicaid payments.
12. Believing that MEDICARE pays for long-term nursing home costs.
13. Making transfers into and out of the wrong type(s) of trusts.
14. Thinking the $11,000 IRS gift tax exclusion is applicable to Medicaid.
15. Thinking that Medicaid rules are the same in every state.
16. Failing to realize that Medicaid rules continuously change.
17. Obtaining advice from people who have limited knowledge or expertise with the Medicaid laws.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.