Florida Recognizes Same-Sex Marriage for Purposes of Electing the Personal Representative

Posted on August 29, 2014

Same-sex marriage has been a hot political topic in our nation’s cultural and social atmosphere for the past ten years.  In the legal field, marriage can affect numerous aspects of a person in a relationship, including inheritance, tax benefits, housing, and most recently reviewed in Palm Beach, who can serve as personal representative of your estate.  Florida law states that a person cannot appoint a non-resident to serve as personal representative unless that person is your “spouse” or otherwise related to you.  See Fla. Stat. § 733.304 (2012).    In 1980, the Florida Supreme Court rationalized this law by stating that the administration of a person’s estate is so intensely localized, that it requires the personal representative to be thoroughly informed on local matters and be closely available to third parties such as beneficiaries, and creditors.  Included in the Court’s discussion were arguments of avoiding needless delay, the cost of representation, and reducing travel costs and in-state representation.

The Florida Supreme Court failed to note any logical distinction between out-of-state personal representatives who might be related to the decedent and Florida residents.  The issue is whether an individual when formulating their estate plan should have the ability to select an out-of-state non-relative to serve as their personal representative who may also be an advisor, attorney, accountant, broker or trusted friend, instead of his or hers crazy brother living in Wyoming who dropped out of school just because they were related to you?

Earlier this year, the Supreme Court of the United States struck down section 3 of the Federal Defense of Marriage Act, or DOMA, as unconstitutional, which defined marriage as a union between one man and one woman.  Although the holding is contrary to Florida law, the Florida Attorney General did not show up to contest the issue, or file any response or objection to the amended petition for administration.

This month, a Palm Beach County probate judge ordered in In re Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir., Palm Beach, August 5th, 2014), that a non-resident, W. Jason Simpson (“Simpson”), could serve as personal representative to the estate of his deceased husband, Frank Bangor (“Bangor”).  The two men were together for 37 years, and were married in Delaware of last year.  Simpson was the sole beneficiary to the estate and named personal representative under Bangor’s will.  Simpson would have been barred under Florida law from serving as the personal representative of the estate unless he qualified as a non-resident “spouse.”  Pursuant to the holding in Windsor, and Federal Courts in thirteen different states which prohibit state laws from denying the recognition of same-sex marriages, the probate court in Palm Beach found no compelling state interest in treating same-sex couples differently for the purposes of selecting a non-resident “spouse” as personal representativeof an estate.  The Court also reasoned that

[t]here is no justification in denying Mr. Simpson the privilege of acting as the fiduciary, based solely on the gender and sexual orientation of his now-deceased spouse.  [Florida’s] Marriage Laws unnecessarily discriminate against this “spouse,” who is recognized by other States as a “spouse,” to act as a [personal representative].  Clearly, it was Mr. Bangor’s intent that Mr. Simpson serve as his Personal Representative and inherit all of his property . . . .  There is no rational basis to apply those laws to the facts of this case.  Same-sex couples are entitled to respect, dignity, and protection as any other spouse requesting to be a Personal Representative.

This holding is the fourth in the last month to clash against Florida’s same-sex marriage ban.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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