Overland Park, KS asked in Estate Planning for Florida

Q: If a will reads that proceeds initially go to surviving spouse (in Florida) and then, upon death of surviving spouse,

they are 2 be split between 4 children (2 from each spouse) can the surviving spouse legally transfer all funds to one of the children while the surviving spouse is still living?

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3 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: It is not possible to answer your question without reviewing the will. The answer could go either way depending on how the bequest for the benefit of the surviving spouse was structured. If left to the surviving spouse outright then he or she can do whatever he or she wants with it, assuming no side agreement or contract to the contrary. If left to the surviving spouse in trust then it depends on what the trust says.

Terrence H Thorgaard
Terrence H Thorgaard
Answered
  • Estate Planning Lawyer
  • Freeeport, FL
  • Licensed in Florida

A: Your question would make sense were the assets in question real property. In such a case, it sounds like a life estate to the surviving spouse, and the remainder to the four children. But your use of the words "proceeds" and "funds" suggests that you are asking about money received upon the sale of estate property. In such case, it would not make any sense to transfer money to the surviving spouse (for his or her lifetime only) and then somehow try to take it back and pay it to the children. I suggest you ask your question of an attorney; if it's more than a hypothetical question you need one in any event.

Marc J. Soss
Marc J. Soss
PREMIUM
Answered
  • Estate Planning Lawyer
  • Sarasota, FL
  • Licensed in Florida

A: To answer your question I need to make several assumptions (never a good thing), however, assuming the surviving spouse inherits the probate assets without any restrictions, they are free to dispose of them during their lifetime as they choose. That can include distributing them to just one individual. In contrast, if the inheritance has restrictions, such as only a life estate or income interest, they are not free to distribute all the assets to just one of the beneficiaries.

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