Katz v. Katz

• Court: Florida District Court of Appeals
• Writing for the Court: WARNER
• Citation: Katz v. Katz, 666 So.2d 1025 (Fla. App. 1996)
• Decision Date: 24 January 1996
• Docket Number: No. 94-2391,94-2391
• Parties: 21 Fla. L. Weekly D249 Beatrice KATZ, Appellant, v. Norman KATZ and David Katz, Executors of the Estate of Joseph Katz, deceased, Appellees.

Page 1025

666 So.2d 1025

21 Fla. L. Weekly D249

Beatrice KATZ, Appellant, v. Norman KATZ and David Katz, Executors of the Estate of Joseph Katz, deceased, Appellees.

No. 94-2391.

District Court of Appeal of Florida Fourth District.

Jan. 24, 1996.

Appeal from the Circuit Court for Broward County; Jack Musselman, Judge.

Peter Sachs and Stephen J. Aucamp of Jones, Foster, Johnson & Stubbs, West Palm Beach, for appellant.

Charles M. Auslander and Steven S. Goodman of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for appellees.

WARNER, Judge.

This is an appeal of a final judgment of the probate court determining that the appellant, as surviving spouse of the decedent, had failed to establish her claim to a constructive trust of securities in the decedent's name which had been purchased with funds withdrawn from their joint accounts. She also claimed that pursuant to a prenuptial agreement in which the decedent had promised to apply "all" of his income to the support of the appellant and the decedent, she was entitled to all of her former husband's income remaining in his individual account and in stocks held in his name which had been purchased through reinvestment of his stock dividends. We affirm the order of the trial court.

The appellant and the decedent entered into a prenuptial agreement prior to their marriage in 1979. The agreement permitted the decedent to separately own and retain rights in all premarital assets and all income that he derived therefrom against any claim by the appellant. The agreement also provided that upon the death of either party, all funds held in joint bank accounts would become the property of the survivor. The appellant waived her right to all other property of the decedent then owned or thereafter acquired. However, the agreement also provided that gifts between the parties were not precluded and it allowed for the creation of joint ownership in property after the marriage if both parties so desired. Nevertheless, the terms of the agreement specifically stated that nothing in the agreement or the provision concerning gifts required or promised the creation of joint ownership or the giving of any gift or bequest.

During the marriage, the couple opened joint accounts which the parties stipulated at trial were all held as joint tenancies with the right of survivorship. The majority of funds deposited in these accounts belonged to the decedent. Both parties wrote checks from all of the joint accounts. According to the appellant, she would sign checks withdrawing funds from these joint accounts and give them to the decedent with the belief that he was using them to purchase securities in both of their names. However, the securities were purchased only in the decedent's name. The appellant now claims that because the money to purchase these securities came from joint accounts, she is entitled to the securities.

The trial court determined that the appellant did not have an interest in these securities. Relying upon the provisions of the prenuptial agreement, the court concluded that the decedent had the right to retain all premarital assets and income generated therefrom, and that it was the appellant's burden to demonstrate that the funds used to buy the disputed securities were not from this source. Concluding that she had not met this burden, the court ruled that she had no interest in the securities.

The appellant, however, contends that the trial court ignored the provision of the agreement which allowed gifts between the parties and that the decedent's deposit of his premarital property in the joint account created the presumption that a gift was intended under Florida law. However, the presumption which arises under Florida law is that a gift of funds remaining in a joint account at the death of the creator is presumed. See In re Estate of Combee, 601 So.2d 1165, 1166-67 (Fla.1992). The appellant relies on Goldstein v. Goldstein, 310 So.2d 361, 365-66 (Fla. 3d DCA 1975), in attempting to show a broader inter vivos gift presumption in support of her claim that the decedent's deposit of premarital property into their joint account should be presumed to be a gift. As authority for this proposition, however, Goldstein cites cases which refer to an inter vivos gift presumption in the context of property held by tenancy by the entireties. See Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Witlin v. Witlin, 153 So.2d 70 (Fla. 3d DCA 1963); Lauderdale v. Lauderdale, 96 So.2d 663 (Fla. 3d DCA 1957). Therefore, Goldstein does not support the proposition that a presumption of an inter vivos gift is created upon the opening of a joint account with right of survivorship. The parties appear to have treated these accounts as ones of convenience rather than of gift. Since there was no other evidence which showed that the decedent had intended that...