By Giovanna (Gia) Abreu O’Connor — Recent changes to Florida law have expanded protections for elderly persons and disabled adults by creating disinheritance penalties for abuse, neglect, exploitation, or aggravated manslaughter of our most vulnerable.
Florida Statutes §733.303 was amended to prohibit persons convicted of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or disabled adult in any state or foreign jurisdiction from serving as personal representative of any estate in Florida.
Florida Statutes §732.8031 was enacted to prevent persons convicted of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or disabled adult from benefitting as a result of their unlawful conduct. The statute provides two methods for its applicability to prevent the wrongdoer from receiving a variety of assets: (1) a final judgment of conviction for abuse, neglect, exploitation, or aggravated manslaughter creates a rebuttable presumption that the statute applies; or (2) where there is no qualifying conviction, the court may determine by the greater weight of the evidence whether the death of a victim was caused by or contributed to by the abuser’s, neglector’s, exploiter’s, or killer’s conduct.
Under the new §732.8031, if the applicability of the statute can be established in one of the two ways outline above, a wrongdoer is determined to have predeceased the victim of their misdeeds. An abuser, neglector, exploiter, or killer convicted (in any state or foreign jurisdiction) will not be able to benefit from their conduct against a decedent, or a person upon whose death the wrongdoer’s interest depends, as to the following interests or assets:
- Benefits under a will;
- Benefits under the probate code (such as intestate inheritance rights);
- Property appointed by will to or for the benefit of the wrongdoer;
- Real and personal property held jointly with right of survivorship or under tenancies by the entireties (for conduct against the co-owner(s)); and
- Bonds, life insurance policies, or other contractual arrangements (for conduct against the owner, principal oblige, or person whose life a policy was issued).
- 732.8031 provides that “[a]ny other property or interest acquired as a result of the abuse, neglect, exploitation, or manslaughter must be returned in accordance with [the statute].” The statute does not affect the rights of a person who purchases property for value and without notice from the abuser, neglector, exploiter, or killer before rights to the property have been adjudicated. However, “[t]he abuser, neglector, exploiter, or killer is liable for the amount of the proceeds or the value of [such] property….” The statute does not apply if it can be proven by clear and convincing evidence that, after a qualifying conviction, the victim (if capacitated) ratifies an intent that the convicted wrongdoer retain the right(s) that might otherwise be removed by the statute. The ratification must be in the form of “a valid written instrument, sworn to and witnessed by two persons who would be competent as witnesses to a will, which expresses a specific intent to allow the convicted person to retain [the right(s) or benefit(s) otherwise removed by the statute].”
Florida Statutes § 736.1104 was also amended to prohibit any trust beneficiary convicted on any state or foreign jurisdiction of abuse, neglect, exploitation or aggravated manslaughter of an elderly person or disabled adult “for conduct against a settlor or another person on whose death such beneficiary’s interest depends.” The wrongdoer “is not entitled to any trust interest, including a homestead dependent on the victim’s death, and such interest shall devolve as though the abuser, neglector, exploiter, or killer had predeceased the victim.” As with §732.8031, the statute’s rebuttable presumption of applicability is triggered by a qualifying conviction. The court may also make a determination by the greater weight of the evidence of “whether the decedent’s or other person’s death was caused by or contributed to by the abuser’s, neglector’s, exploiter’s, or killer’s conduct…” as defined in the statute. § 736.1104 also carves out an exception that allows a capacitated victim to ratify their intent to allow the wrongdoer to retain a trust interest. The requirements for the ratifying instrument mirror those in
These legislative changes became effective on July 1, 2021, and have already been incorporated to the Florida Statutes.
While all states have slayer statutes or common law equivalents prohibiting those responsible for a death from inheriting from their victims, not every state has expanded the reach of its slayer laws to protect victims of abuse, neglect, exploitation, or aggravated manslaughter of elderly and disabled persons. Other states that have expanded their slayer laws to apply to elder abuse, including Arizona, California, Illinois, Kentucky, Maryland, Oregon, Michigan, and Washington. Some of these states require a criminal conviction for disinheritance, some only allow disinheritance as a penalty for financial exploitation, while others do not require a criminal conviction.