In our recent discussions of the adult guardianship system in Florida, we have covered a lot of ground regarding some of the legal reasoning used by courts in deciding whether a family member can challenge the potential appointment of a person who has been designated previously by an incapacitated adult to be his or her guardian. Before that, we spent time on how the professional guardianship system in Florida had come under scrutiny and some legislative efforts to change some of the ways the system works. These discussions point up one of the main reasons older adults end up with people other than family appointed as their guardians: the family can't agree. Two recently reported cases illustrate this.
This blog has discussed previously the concept of 'elective shares' and how they can be waived during an estate administration in Florida. To refresh, the 'elective share' is that portion of the estate that a spouse (and sometimes child) may take instead of what was left to him or her in the decedent's last will and testament. A related concept that we touched on but did not expound upon is that of 'exempt property.'
There are two basic types of legal standards that are used when litigating legal issues: statutory law and case law. Statutory law consists of the laws passed by legislatures, be they federal or state, and signed by the executive; i.e. the president or governor. Case law, on the other hand, is comprised of the accumulated interpretations of courts, especially appellate courts, of the statutes on which the law is based as applied to certain real-life situations.
Previous posts here have discussed many forms of estate planning and how Florida residents may help direct the way their property is disposed of in case of incapacity or death. In many of these cases, we have looked at a testator's personal or real property, and how that will be distributed. But, what if the person in question owns a business? What happens to the business or decedent's share thereof when the person becomes incapacitated or dies? Especially if the ownership of the business is held in conjunction with other people, such as with shareholders in a corporation, or a partnership, owners may wish to consider a 'buy-sell' or 'buyout' agreement.