By Bonie Montalvo
February, the month of heart-shaped chocolate boxes, teddy bears, and flowers galore. If you are tired of gifting jewelry and chocolates and are looking for a unique “outside the box” gift this Valentine’s Day, give the gift of planning.
If You Are Dating
Be it that you have dated for one moth or for ten years, in the State of Florida, your significant other will not have automatic preference to make important decisions on your behalf nor does your significant other inherent any of your assets. While it is probably wise of the law to avoid giving preference to a person you just meet three days ago, there are many happily unmarried couples that treat each other as they were. In those instances, it is important to have certain documents in place in order to properly provide for your loved one. In the event that you become incapacitated, an advanced directive will allow you to name your loved on as the individual that will make health decisions on your behalf and a power of attorney will allow them to make financial decisions for you in the event that you are unable to. Further, should you wish to leave your house, or any other assets titled in your name, you will want to draft a last will and testament in order to properly carry out your wishes.
If You Are Married
The law gives your spouse preference to act on your behalf in the event that you are unable to, in many instances, you will not need an advanced directive or power of attorney to appoint your spouse as the person to handle your affairs. In the event that you would like for someone other than your spouse to make medical and financial decisions on your behalf, you would need to indicate so by executing the necessary documents. The law also makes your spouse the main beneficiary of your assets. Under Florida law, if you pass away without a last will and testament your spouse is entitled to your entire estate. If you or your spouse have children from other marriages, then your spouse would get half of your estate and your children would get the other half. In the event that you would want for someone other than your spouse to receive part of your estate, you would need to execute a last will and testament in order to avoid Florida’s intestacy laws.
If You Have Children
If you are unmarried and have adult children, your children are given preference to make choices on your behalf and your children are the main beneficiaries of your estate if you pass away without a last will and testament. Do you want your children to inherit your property outright, or would your rather have more control on how your children inherit your assets? If you want more control over how your children receive your assets, a trust may be the option for you. Further, if you would like for some children to receive more/less of your assets or if you would like to give a certain specific asset to a particular child, a last will and testament or trust evidencing such intent would be needed. Lastly, and most importantly, a last will and testament also allows you to name guardians for your minor children who will tend to your child’s care and upbringing in the event of your passing.
If You Are Single
If you are single it is important to have an advanced directive and power of attorney in order to manifest your preference as to your care during incapacity. Under Florida law, if you are unmarried and have children, your entire estate goes to your children. If you are unmarried and have no surviving children, your parents inherit your entire estate. If you are unmarried, have no surviving children nor surviving parents, your surviving siblings inherit your entire estate. If you have no surviving siblings, your estate continues to be divided among more distant family members, and in the event that no family members survive you, your estate go to the State of Florida. A last will and testament allows you to bypass Florida’s default laws and lets you distribute your estate outside of your family, to friends, pets, charities and organizations of your choice.
Whether you are dating, married, single or “it’s complicated”, take time this month to get your affairs in order, some planning today will benefit you and your loved ones in the future.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Bonie Montalvo practices in the areas of estate planning, business succession planning, tax planning, and not-for-profit law. Ms. Montalvo has her LL.M. in Taxation from the University of Florida and is fluent in Spanish.