Florida Probate and Trust Litigation Blog - Florida Elective Share 

What probate rights does an excluded surviving wife or husband have to the spouse's Will or Trust?

Florida has a strong public policy concerning the protection of the surviving spouse of the marriage in existence at the time of the decedent's death. Via v. Putnam, 656 So. 2d 460, 461 (Fla. 1995)

What is Florida's Elective Share?

Due to this public policy, the Florida Legislature created the Elective Share to protect spouses who were either completely disinherited (cut out) from the estate plan, or left an insulting nominal sum. If you have ever heard the terms dower or curtesy in relating to a spouse's inheritance, please forget those terms. The Florida legislature abolished that long ago in favor of the Elective Share.

Who has a right to the elective share?

In order to receive the elective share, you must be the current spouse. Prior spouses lose the right to elective share upon divorce/death. The applicable statute, Florida Statutes Section 732.201,  provides as follows: 

How much can a spouse receive?

The simple over generalized answer is that a surviving spouse is entitled to 30% of the Elective Estate when they were disinherited from the will. The complicated issue, however, is calculating what is included and excluded from the Elective Estate. 

What is property included in the Elective Estate?

Florida has a comprehensive statute, Section 732.2035,  that itemizes all of the categories of property that are included in calculating the Elective Estate:

732.2035 Property entering into elective estate.—Except as provided in s. 732.2045, the elective estate consists of the sum of the values as determined under s. 732.2055 of the following property interests:

(1) The decedent’s probate estate.

 

(2) The decedent’s interest in property which constitutes the protected homestead of the decedent.

 

(3) The decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or coownership with right of survivorship form. For this purpose, “decedent’s ownership interest” means, in the case of accounts or securities held in tenancy by the entirety, one-half of the value of the account or security, and in all other cases, that portion of the accounts or securities which the decedent had, immediately before death, the right to withdraw or use without the duty to account to any person.

 

(4) The decedent’s fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety. For this purpose, “decedent’s fractional interest in property” means the value of the property divided by the number of tenants.

 

(5) That portion of property, other than property described in subsections (2) and (3), transferred by the decedent to the extent that at the time of the decedent’s death the transfer was revocable by the decedent alone or in conjunction with any other person. This subsection does not apply to a transfer that is revocable by the decedent only with the consent of all persons having a beneficial interest in the property.

 

(6)(a) That portion of property, other than property described in subsection (2), subsection (4), subsection (5), or subsection (8), transferred by the decedent to the extent that at the time of the decedent’s death:

 

1. The decedent possessed the right to, or in fact enjoyed the possession or use of, the income or principal of the property; or

 

2. The principal of the property could, in the discretion of any person other than the spouse of the decedent, be distributed or appointed to or for the benefit of the decedent.

In the application of this subsection, a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement shall be treated as a right to that portion of the income of the property necessary to equal the annuity, unitrust, or other payment.

(b) The amount included under this subsection is:

 

1. With respect to subparagraph (a)1., the value of the portion of the property to which the decedent’s right or enjoyment related, to the extent the portion passed to or for the benefit of any person other than the decedent’s probate estate; and

 

2. With respect to subparagraph (a)2., the value of the portion subject to the discretion, to the extent the portion passed to or for the benefit of any person other than the decedent’s probate estate.

 

(c) This subsection does not apply to any property if the decedent’s only interests in the property are that:

 

1. The property could be distributed to or for the benefit of the decedent only with the consent of all persons having a beneficial interest in the property; or

 

2. The income or principal of the property could be distributed to or for the benefit of the decedent only through the exercise or in default of an exercise of a general power of appointment held by any person other than the decedent; or

 

3. The income or principal of the property is or could be distributed in satisfaction of the decedent’s obligation of support; or

 

4. The decedent had a contingent right to receive principal, other than at the discretion of any person, which contingency was beyond the control of the decedent and which had not in fact occurred at the decedent’s death.

 

(7) The decedent’s beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent’s life.

 

(8) The value of amounts payable to or for the benefit of any person by reason of surviving the decedent under any public or private pension, retirement, or deferred compensation plan, or any similar arrangement, other than benefits payable under the federal Railroad Retirement Act or the federal Social Security System. In the case of a defined contribution plan as defined in s. 414(i) of the Internal Revenue Code of 1986, as amended, this subsection shall not apply to the excess of the proceeds of any insurance policy on the decedent’s life over the net cash surrender value of the policy immediately before the decedent’s death.

 

(9) Property that was transferred during the 1-year period preceding the decedent’s death as a result of a transfer by the decedent if the transfer was either of the following types:

 

(a) Any property transferred as a result of the termination of a right or interest in, or power over, property that would have been included in the elective estate under subsection (5) or subsection (6) if the right, interest, or power had not terminated until the decedent’s death.

 

(b) Any transfer of property to the extent not otherwise included in the elective estate, made to or for the benefit of any person, except:

 

1. Any transfer of property for medical or educational expenses to the extent it qualifies for exclusion from the United States gift tax under s. 2503(e) of the Internal Revenue Code, as amended; and

 

2. After the application of subparagraph 1., the first annual exclusion amount of property transferred to or for the benefit of each donee during the 1-year period, but only to the extent the transfer qualifies for exclusion from the United States gift tax under s. 2503(b) or (c) of the Internal Revenue Code, as amended. For purposes of this subparagraph, the term “annual exclusion amount” means the amount of one annual exclusion under s. 2503(b) or (c) of the Internal Revenue Code, as amended.

 

(c) Except as provided in paragraph (d), for purposes of this subsection:

 

1. A “termination” with respect to a right or interest in property occurs when the decedent transfers or relinquishes the right or interest, and, with respect to a power over property, a termination occurs when the power terminates by exercise, release, lapse, default, or otherwise.

 

2. A distribution from a trust the income or principal of which is subject to subsection (5), subsection (6), or subsection (10) shall be treated as a transfer of property by the decedent and not as a termination of a right or interest in, or a power over, property.

 

(d) Notwithstanding anything in paragraph (c) to the contrary:

 

1. A “termination” with respect to a right or interest in property does not occur when the right or interest terminates by the terms of the governing instrument unless the termination is determined by reference to the death of the decedent and the court finds that a principal purpose for the terms of the instrument relating to the termination was avoidance of the elective share.

 

2. A distribution from a trust is not subject to this subsection if the distribution is required by the terms of the governing instrument unless the event triggering the distribution is determined by reference to the death of the decedent and the court finds that a principal purpose of the terms of the governing instrument relating to the distribution is avoidance of the elective share.

 

(10) Property transferred in satisfaction of the elective share.

 

 

What is property excluded in the Elective Estate?

Similarly, Florida has a statute, Section 732.2045 that discusses the property and assets excluded from the calculation of the 30% spousal elective share.

732.2045 Exclusions and overlapping application.—

(1) EXCLUSIONS.—Section 732.2035 does not apply to:

 

(a) Except as provided in s. 732.2155(4), any transfer of property by the decedent to the extent the transfer is irrevocable before the effective date of this subsection or after that date but before the date of the decedent’s marriage to the surviving spouse.

 

(b) Any transfer of property by the decedent to the extent the decedent received adequate consideration in money or money’s worth for the transfer.

 

(c) Any transfer of property by the decedent made with the written consent of the decedent’s spouse. For this purpose, spousal consent to split-gift treatment under the United States gift tax laws does not constitute written consent to the transfer by the decedent.

 

(d) The proceeds of any policy of insurance on the decedent’s life in excess of the net cash surrender value of the policy whether payable to the decedent’s estate, a trust, or in any other manner.

 

(e) Any policy of insurance on the decedent’s life maintained pursuant to a court order.

 

(f) The decedent’s one-half of the property to which ss. 732.216-732.228, or any similar provisions of law of another state, apply and real property that is community property under the laws of the jurisdiction where it is located.

 

(g) Property held in a qualifying special needs trust on the date of the decedent’s death.

 

(h) Property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment.

(i) Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s. 732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedent’s death.

 

(2) OVERLAPPING APPLICATION.—If s. 732.2035(1) and any other subsection of s. 732.2035 apply to the same property interest, the amount included in the elective estate under other subsections is reduced by the amount included under subsection (1). In all other cases, if more than one subsection of s. 732.2035 applies to a property interest, only the subsection resulting in the largest elective estate shall apply.

 

History.—s. 4, ch. 99-343; s. 21, ch. 2001-226; s. 4, ch. 2009-115; s. 3, ch. 2017-121.

Contact Us:

PersanteZuroweste is a Florida law firm that handles varieties of estate litigation in Pinellas County, Clearwater, Florida including causes of action relating to claims for spouses to the elective share. If you believe that you may need legal assistance regarding a probate or trust litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.