§ 732.806 — Gifts to lawyers and other disqualified persons

Florida § 732.806

• Jurisdiction: Florida
• Title: XLII
• Ch. 732: PROBATE CODE: INTESTATE SUCCESSION AND WILLS

Text

(1) Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.

(2) This section is not applicable to a provision in a written instrument appointing a lawyer, or a person related to the lawyer, as a fiduciary.

(3) A provision in a written instrument purporting to waive the application of this section is unenforceable.

(4) If property distributed in kind, or a security interest in that property, is acquired by a purchaser or lender for value from a person who has received a gift in violation of this section, the purchaser or lender takes title free of any claims arising under this section and incurs no personal liability by reason of this section, whether or not the gift is void under this section.

(5) In all actions brought under this section, the court must award taxable costs as in chancery actions, including attorney fees. When awarding taxable costs and attorney fees under this section, the court may direct payment from a party’s interest in the estate or trust, or enter a judgment that may be satisfied from other property of the party, or both. Attorney fees and costs may not be awarded against a party who, in good faith, initiates an action under this section to declare a gift void.

(6) If a part of a written instrument is invalid by reason of this section, the invalid part is severable and may not affect any other part of the written instrument which can be given effect, including a term that makes an alternate or substitute gift. In the case of a power of appointment, this section does not affect the power to appoint in favor of persons other than the lawyer or a person related to the lawyer.

(7) For purposes of this section: (a) A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer. (b) A person is “related” to an individual if, at the time the lawyer prepared or supervised the execution of the written instrument or solicited the gift, the person is: 1. A spouse of the individual; 2. A lineal ascendant or descendant of the individual; 3. A sibling of the individual; 4. A relative of the individual or of the individual’s spouse with whom the lawyer maintains a close, familial relationship; 5. A spouse of a person described in subparagraph 2., subparagraph 3., or subparagraph 4.; or 6. A person who cohabitates with the individual. (c) The term “written instrument” includes, but is not limited to, a will, a trust, a deed, a document exercising a power of appointment, or a beneficiary designation under a life insurance contract or any other contractual arrangement that creates an ownership interest or permits the naming of a beneficiary. (d) The term “gift” includes an inter vivos gift, a testamentary transfer of real or personal property or any interest therein, and the power to make such a transfer regardless of whether the gift is outright or in trust; regardless of when the transfer is to take effect; and regardless of whether the power is held in a fiduciary or nonfiduciary capacity.

(8) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or in equity.

(9) This section applies only to written instruments executed on or after October 1, 2013.

Legislative History

s. 7, ch. 2013-172; s. 1, ch. 2014-127.