My husband created an irrevocable trust 7 days before his death.
We were in the middle of a divorce, but did not resolve it before his death. He created an irrevocable trust leaving me and our minor child out of the will. Can i dispute this irrevocable trust created in Florida?
Consultations may be free but litigation is not. First question-you must decide based upon a reasonable confidence in your information what the approximate value of the estate was--which appears was poured into the trust. As my late, great father used to say: the game has to be worth the candle. Second, I do some work in Florida on a pro hac vice basis as I am preparing to take the Florida bar.
Third, the heart of the matter is the grounds for a court undoing the trust--if he had his faculties that is not an easy task--I would have to look at the trust to see who the beneficiaries are, although I have a suspicion already. I would like to see the documents.
I hope this response was helpful and if I can help further I am here. Good luck.
Even though you were divorcing, legally you were still his wife. You will be entitled to a 30 percent share of most items he had an interest in, but may have given away or put in another beneficiary up to a year before his death amongst other rights. Most attorneys offer a free consultation. I suggest you speak with a probate litigator.
I'm sorry to read of your loss; please accept my sympathies. At the time of your husband's death, you were still married under Florida law. As his spouse, you are entitled to a number of things, most notably the elective share, 30% of the value of a group of assets (FS 732.2035), which would likely include any asset he transferred into the trust he created prior to death. In addition, there may be other issues because he is survived by a minor child. It's best that you consult with an attorney about these matters. Best of luck.
Being in the middle of a divorce is not the same as being declared no longer married to one another. You have "elective share" rights to his estate that you need to claim in a timely manner. Also, your son, as a minor, cannot be discounted from a homestead property, if one exists. Run, do not wait, to seek experienced counsel. Likewise, I am changing this area of practice from probate to Trusts to help you receive even more specific responses. Wishing you good luck with your endeavors!
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Mr. Cabanas is certainly correct in that there are many ways to challenge this Trust. More importantly, you should be able to get the elective share regardless. If you and your child were left out, who was left in? You should retain competent counsel and allow her or him to determine your best course of action including communicating with the remaining beneficiaries to try to create a family settlement agreement which would avoid the cost of litigation.
There are several bases upon which you can most likely prevail against the document. Firms such as ours provide free initial consultations. It may help to have an attorney look at all of the documentation. It is impossible to answer the question sufficiently in this type of forum.
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