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If you are named as a beneficiary of a Florida Estate, then you are going to inherit the decedent’s property, right?  The asset may be a big thing, like an oceanfront condo, or it might be small, like a cocktail ring or antique clock, but no matter what you are going to be receiving something because you’re named in the will. Sure, that’s true — almost always.

However, there are times under Florida law when someone is legally an heir to an estate but cannot receive the decedent’s property because Florida law bars their inheritance. That’s right: there are laws on the books that will block a rightful heir from his or her inheritance and there’s nothing that the heir can do to change that.
Basilica of Our Lady of the Valley clock

1. Laches Doctrine

One way that an heir can be barred from receiving their inheritance in Florida is by the court’s application of the legal doctrine of “laches.” What is laches? It’s a legal concept that is used to give finality to things. If there is negligence on the part of an heir to claim his or her inheritance, or if an heir procrastinates and does not timely assert his or her right to inherit the property, then the court can bar that party from inheriting. See, Cone v. Benjamin, 157 Fla. 800, 27 So. 2d 90 (1946).

Estates cannot remain open forever, in the hopes that an heir will eventually claim their inheritance.

Of course, if the heir has a good reason for taking so long in claiming his or her property, then the laches doctrine won’t apply. When does laches work to bar an heir from inheriting? It’s usually years after the decedent has passed away, and the estate needs to be closed.

2. Divorce, Desertion, Abandonment

If a husband and wife get a divorce and then one of them dies, technically the surviving spouse can argue to inherit as a “surviving spouse.” However, Florida law holds that a valid divorce decree will block the ex-spouse from inheriting (The decree must be valid under the law of the jurisdiction where it was entered, and it must clearly terminate and end the marriage between the two. Under Florida probate law, once a divorce decree is entered into the probate record, it will serve as a legal bar to that ex-spouse inheriting as a surviving spouse – See Carpenter v. Carpenter).

Also, even if there is not a formal divorce, if it can be shown that the surviving spouse had deserted or abandoned the deceased spouse, then the court may also bar that surviving spouse from any inheritance. See, Doherty v. Traxler, 66 So. 2d 274 (Fla. 1953).

The Pen Pal Marriage

In Doherty, a woman named Gertrude Hammond Baxley started up a pen-pal correspondence with a man named Ezekiel Doherty. Not long after they started writing each other, Ezekiel showed up at Gertrude’s place and they got married. The marriage was never consummated. They never lived together; Ezekiel only stayed the one night there before he left “for parts unknown.”

Poor Gertrude never bothered to get an official divorce from Ezekiel Doherty. She never saw him again after that one whirlwind visit.

Sadly, Gertrude was murdered 22 years later. She left a lot of money and property upon her passing, and her only heir under Florida law was her elderly brother William, who was sickly and dependent upon his sister for years. Part of her estate was her own hard work; part of it was from an inheritance from her deceased parents.

Enter Ezekiel Doherty again. Upon hearing of Gertrude’s passing, he showed up and argued that as her legal husband he had the legal rights of a surviving spouse and her primary heir. This despite the fact that he had been living with another woman in a bigamous marriage for over 20 years in another town, and admitted under oath to the court that he had been happily living with this other wife at the time that he heard of Gertrude’s death.

The court ruled based upon equity. It found that Ezekiel Doherty appeared before the court “…openly, brazenly and flagrantly violated the laws of God and man and every principle of right, justice, decency, public policy and sound morals.” Furthermore, that Mr. Doherty “… shows no shame and offers no excuse or apology.” The court found that it would not help him in his “nefarious scheme,” and barred him from inheriting anything from the Estate of Gertrude Baxley.

3. Waiver

It is also possible for an heir to sign a written waiver that will act to bar his or her inheritance. For instance, a spouse may sign a document (usually a document known as a prenuptial or ante-nuptial agreement) that waives, in part or in sum, any right to inherit from their husband or wife. This can be done before they get married (prenuptial agreement), or it can be done many years after the wedding (ante-nuptial agreement).

The waiver needs to be legally binding, of course. It must be written, and it is considered to be a contract under Florida contract law. There must be the written signatures of both parties, as well as two subscribing witnesses who witness the waiving party signing the document.

If there is a waiver, it is assumed that it applies to all possible inheritance under the law. If the waiver is only as to specific property, then that needs to be clearly stated in order to be enforceable. See, Florida Statute 732.702(1).

4. Homicide

It may be shocking to some, but there has been the need for Florida legislature to pass a law that states someone who has killed another person cannot be allowed to inherit property from them, even if they are the deceased’s legal heir. See, Florida Statute 732.802(1)(”the Florida Probate Murder Statute.”)

Under this Florida law, if someone intentionally kills the decedent or participates in their killing, then they cannot inherit or claim any benefits resulting from that death under the Florida Probate Court. The law holds that the property will be distributed under the probate laws as if the killer had died before his victim.

This statute was originally passed into law back in the 1930s. However, there are still attempted by murderers to inherit from their victims — the law is still very much needed today.

For instance, in LoCascio v. Sharpe, 23 So. 3d 1209 (Fla. Dist. Ct. App. 3d Dist. 2009), a woman named Silvia LoCascio was in the process of getting a divorce when she was murdered by her soon-to-be-ex husband Edward LoCascio and his brother, Michael. They were tracked down, arrested, and convicted of first-degree murder.

Silvia died without leaving a will. Accordingly, the Florida intestacy statutes applied to her estate, and as her surviving spouse, Edward stood to inherit as a legal heir. The victim’s son, Edward Junior, appeared before the probate court seeking justice.

It was held that the Florida Probate Murder Statute, also known as the “slayer statute,” would bar murderer Edward, Senior, from inheriting anything from his deceased wife.

Instead, in accordance with Florida Statute 732.802, the estate would be distributed as if Edward Senior had pre-deceased Silvia, with her son Edward Junior being her primary heir.

Note however, that in the LoCascio case, the killer was not barred from retaining his separate property interest in their home. The court held that this was his legal property under Florida law and not a part of his victim’s estate for inheritance purposes.

5. Unintentional Killing and Accidental Death

The Florida slayer statute is limited to intentional acts of homicide. If the decedent dies because of the acts of an heir, this will not automatically mean that the heir cannot inherit. Key here is intent on the part of the heir.

This can be tricky. Of course, this means that if there is a car crash and one spouse dies and the other lives, the inheritance is not barred even if it is shown that the crash was caused by the surviving spouse. See, Florida Statute 782.03.

However, in criminal matters there can be distinguishing facts among the charged crimes in a killing. If the heir is charged with something like “involuntary manslaughter,” then no intent is involved in that crime under the criminal statutes.

Accordingly, if the heir is convicted of killing the decedent by involuntary manslaughter, they may be imprisoned after being convicted of this crime, but still inherit from the victim even though they have been found legally responsible for his death. (Drunk driving crashes can sometimes result in involuntary manslaughter charges, for example.)

Husband Strangles Wife, Found Legally Insane, Barred From Inheritance

Intent under the law must be proven; if the killer intended to kill then Florida bar will bar his inheritance. For example, in the case of Congleton v. Sansom, 664 So. 2d 276 (Fla. Dist. Ct. App. 1st Dist. 1995), a Florida man killed his wife.

It happened back in July 1992, when the 911 Operator got a call from Mr. Coleman C. Smith, who reported to the operator that he had just strangled his wife, Vera.

The police were dispatched to the Smith home, and the officers found Vera dead with Coleman nearby. The police officers evaluated Coleman and quickly decided that he needed to be under psychiatric care, taking him into custody for a “Baker Act evaluation.”

The District Attorney later filed second degree murder charges against Coleman for the murder of his wife. He was found by the court to be legally insane; there was never a trial. He was never convicted of a crime.

In the probate court, the personal representative sought the judge’s ruling on who should inherit from Vera’s estate. The 911 tape was placed before the probate judge, along with testimony from the attending police officers, along with experts on his mental state.

Proponents for Coleman Smith argued that since he was legally insane according to the criminal court, he lacked the needed intent to kill and should remain an heir of his deceased wife’s estate. There was no homicide conviction here.

The probate court held that a judgment from a criminal court is not sufficient to form a bar to inheritance under the Florida slayer statute. The personal representative had the duty to show that the killing was both intentional and unlawful in order for the slayer statute to apply and the killer barred from inheriting as her surviving spouse.

The court found that the personal representative met her burden of proof that Coleman Smith killed his wife intentionally. Here, the evidence of Coleman’s insanity did bar him from a criminal trial and conviction; however, the appellate court found that Coleman also acted unlawfully and would be barred from inheriting from his victim’s estate.

Key here: no evidence that Coleman could not distinguish between right and wrong at the time of the killing, and evidence to the contrary, including the fact that he told the 911 operator he was “sorry” for what he had done, and later told another person that he felt “guilty” about what he had done.

Questions Regarding Barring an Inheritance Under Florida Law?

If you or a loved one are involved with a Florida estate and the distribution of the assets of the decedent, then you may have questions or concerns regarding whether or not someone can be, or should be, legally barred from being an heir and getting an inheritance that is otherwise valid under the law.

An experienced Florida probate lawyer can be very helpful in resolving these matters and negotiating disputes between beneficiaries, heirs, and the Personal Representative regarding inheritance matters and how the Probate Code applies to the situation.

Many may be surprised at how much less it costs to get that attorney’s help — some of these questions may be answered in a single telephone conference. Others, however, may need more legal steps; some may require intervention in the form of a hearing before the probate judge.

A good piece of advice if you are faced with an inheritance issue, is to at least talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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