Florida has always had a “slayer statute” that denies a beneficiary who intentionally kills someone from benefiting from the victim’s estate. Consequently, if Johnny kills his father whose will leaves everything to Johnny, then Johnny inherits nothing, and the alternate beneficiary will inherit.
But what about a caretaking relative who, didn’t actively murder an elderly person, but whose negligence or abuse resulted in that person’s death? The slayer statute wouldn’t apply, yet it doesn’t seem right that Johnny inherits after leaving his elderly father to rot in a spare bedroom until he dies.
Recognizing elder and disabled person abuse and neglect as a problem, the Florida legislature responded this year with several new statutes that criminalizes abuse, as well as excluding abusers from inheriting.
A beneficiary who is convicted in any state or foreign jurisdiction of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or disabled adult is now not entitled to any benefits under the decedent’s will or trust. Property appointed by the will or trust to benefit the abuser, neglector, exploiter, or killer passes as if that person predeceased the decedent.
The abuser does not have to be convicted either. The probate court may determine by the greater weight of the evidence whether the decedent’s death that abuse, neglect, etc. occurred, resulting in loss of benefits under a will or trust.
If Johnny is caring for his elderly father who depends upon Johnny for everyday needs, and Johnny doesn’t ensure that father is getting proper care, taking his medication, eating, washing, and the like, Johnny could very well lose his inheritance and be criminally charged.
What about persons who exploit the elderly and disabled by getting frequent gifts?
A statutory definition presuming exploitation includes any transfer of money or property valued over $10,000, whether in a single transaction or multiple transactions, by a person aged 65 or older to a nonrelative whom the transferor knew for less than 2 years and for which the transferor did not receive the reasonably equivalent financial value in goods or services, unless it was a valid loan evidenced in writing that includes the repayment dates and is not in default.
Exploitation is also expanded to include a breach of fiduciary duty that results in a kickback or receipt of improper benefit. Here, kickback can include payment by a health care provider as an incentive or inducement to refer patients when the payment is not tax deductible as an ordinary and necessary expense. Improper benefit can mean payment by any service provider or merchant of goods as an incentive or inducement to refer customers or patrons.
When someone obtains a fiduciary appointment such as a personal representative or trustee with the purpose and design of benefiting someone other than the principal or beneficiary, exploitation has occurred.
Obtaining or using property through intentional modification, alteration, or fraudulent creation of a plan of distribution or disbursement expressed in a will, trust agreement or other testamentary device without either a court order, written instrument executed by the elderly or disabled adult, or action of an agent under a valid power of attorney is also deemed exploitation.
If, for example, Johnny gets his vulnerable father to put his home in joint name with rights of survivorship, that may fall under the definition of exploitation.
When something is presumed under the law, it is very difficult for the accused to rebut it. Imagine trying to prove a negative – an “I didn’t do it” defense. Consequently, those caring for elderly individuals need to be on their best behavior. Now, friends and relatives who suspect neglect, abuse or exploitation can call in the authorities who have statutory powers to prosecute such individuals criminally, and other affected family members can prosecute now civilly.
What if the elderly or disabled individual wants to bequeath or gift a convicted person despite the abuse or neglect? In that case, clear and convincing evidence that the victim ratified an intent that the convicted person retains the inheritance, survivorship right, trust interest or other right by valid written instrument, sworn to and witnessed by 2 persons, expressing a specific intent to allow the convicted person to retain the inheritance, survivorship right, trust interest or other right will result in salvation from disinheritance.
These laws were a long time in the making. Regretfully, I believe that many court cases will arise pointing out abuse, neglect, and exploitation. The Florida Department of Children and Families has an abuse hotline and online reporting mechanism that can be found and accessed at myFLfamilies.com
© 2021 Craig R. Hersch learn more at floridaestateplanning.com
