By James W. Mallonee
On occasion a person will pass without providing a Will as to whom the decedent wants to inherit his or her legacy. This creates and intestate estate and under normal conditions is acceptable provided you have heirs who can inherit. Under normal circumstances this is workable but sometimes it is not legal. Consider the case of the Estate of Bruening, D1867 (Fla 4th DCA Sept. 20, 2023) where Kyle Bruening died leaving a sizable estate; he had no spouse, children, siblings, parents, aunts, uncles, or cousins. He did have a second cousin from a common great grand-parent but no direct familial relation.
This seems very unusual in today’s times but it does happen. What most people do not know is that Mr. Bruening’s sizable estate will escheat to the State of Florida. This revelation came about when the second level nieces and nephews claimed to have an interest in the estate by filing for such intestate interest and were stopped by the State of Florida claiming that their interest was to remote. You may be wondering how can that have happened.
The State was relying on §732.103, Fla. Stat. which determined that second cousins who are related by great-grandparents in common with a decedent are not considered a class of persons identified by the controlling statute of a decedent’s intestate estate. It is true that the law is extremely liberal in finding common lineage among families; however, if that were the law an estate could go on forever in order to find some common link among us all if allowed to do so.
The limitation on heirs is referred to as the laughing heir’s rule where the descendant is so remote that the heir suffers no loss upon the death of the individual. In essence, the descendant claiming the interest in the estate has absolutely no interest or knowledge of the decedent. Had the decedent had a Will or some Testamentary devise prepared for him or her much of this would have been avoided. Florida law does not limit to whom your Will leaves your estate too. However, in this case, the lack of a testamentary device (e.g. Will) combined with the remoteness of the beneficiary’s lineage now causes the decedent’s estate to escheat to the State of Florida.
Thus, the message to be derived from this case is to employ the attorney of your choice to prepare some form of testamentary device where you direct to whom you want to give your estate to either a person(s), organization, charity or pet of your choice as opposed to the State of Florida’s choice. If you are unsure about what to do about your estate at your demise, seek the attorney of your choice and have that discussion.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223
871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223