Florida Marital Property Rights & Probate

When two people divorce in Florida, the assets and debts they accumulate during their marriage are referred to as their marital estate. Unless a premarital agreement exists, Florida law holds that this property must be divided between the spouses via equitable distribution – in other words, by apportioning more to the spouse who may need it most. However, when couples move to Florida after having been married in another state, they may wind up with their property being subject to an entirely different legal system. At probate, this can become a long, drawn-out process unless properly managed beforehand.

Two Asset Distribution Systems

As opposed to the equitable distribution system, nine other U.S. states and Puerto Rico observe a system of marital property distribution known as community property. In community property states, assets and debts are divided 50-50 at divorce, with no exceptions. Couples in a community property state are essentially treated like partners, and when a partnership is divided in most states, half is given to each partner. Each system has its proponents, but Florida has upheld equitable distribution and is generally expected to do so.

That said, Florida is home to many over the age of 65, who are more likely to be on their second or even third marriage, and many couples move to Florida from a community property state. If they do, their community property rights – that is, their right to half of the assets and debts acquired during their marriage – come with them, by virtue of a Florida statute called the Florida Uniform Disposition of Community Property Rights At Death Act (FUDCPRDA). This can be quite confusing when it comes time for probate proceedings.

Florida Law Is Outdated

There are two schools of thought on how to handle the issue of couples whose rights vest in community property, but both of them require a Florida probate attorney who is well versed in both systems. When one spouse passes, their half of the community property must go through probate (unless alternative methods have been adopted to help avoid the probate process) before assets can be distributed to beneficiaries. An attorney not well versed in community property law has the potential to make significant errors during this process.

It is worth noting that as of this writing, there is a nascent movement to push Florida to adopt the Uniform Community Property Disposition At Death Act (UCPDDA). This is a model law which was created in 2021 and would, at least in theory, address some of the faults in the FUDCPRDA, which was passed back in 1971 and not been updated since. However, nothing has come of this push as of yet, leaving Floridians to make certain that their probate attorney can handle all possible situations.

Contact A Hollywood, FL Probate Attorney

If you are a couple living in Florida, but formerly lived in a community property state, it is important that you are able to find a probate attorney who understands both systems of asset distribution. A Hollywood probate attorney from the Law Offices of Steven A. Mason, P.A. can help you create the appropriate estate plan for you and for your spouse. Contact our office at (954) 963-5900 to speak to an attorney.

Source:

flprobatelitigation.com/wp-content/uploads/sites/837/2024/01/Article-Florida-Uniform-Disposition-of-Community-Property-Rights-at-Death-Act.pdf