Statutes Dealing With Probate in the State of Florida Florida Probate Code
The following are the general provisions of Florida’s Probate Code: 731.011 Determination of substantive rights; procedures.--The code became effective on January 1, 1976. The substantive rights of all persons that vested prior to January 1, 1976, shall be determined as provided in former chapters 731-737 and 744-746. The procedures for the enforcement of vested substantive rights shall be as provided in the Florida Probate Rules. 731.102 Construction against implied repeal.--This code is intended as unified coverage of its subject matter. No part of it shall be impliedly repealed by subsequent legislation if that construction can reasonably be avoided. 731.103 Evidence as to death or status.--In proceedings under this code and under chapter 736, the following additional rules relating to determination of death and status are applicable: (1) An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, and time of death and the identity of the decedent. (2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report. (3) A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person's death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile or in any county of this state if the decedent was not a resident of Florida at the time his or her absence commenced. (4) This section does not preclude the establishment of death by direct or circumstantial evidence prior to expiration of the 5-year time period set forth in subsection (3). History.--s. 1, ch. 74-106; s. 2, ch. 75-220; s. 946, ch. 97-102; s. 1, ch. 2003-154; s. 27, ch. 2006-217. 731.1035 Applicable rules of evidence.--In proceedings under this code, the rules of evidence in civil actions are applicable unless specifically changed by the code. 731.104 Verification of documents.--When verification of a document is required in this code or by rule, the document filed shall include an oath or affirmation as provided in the Florida Probate Rules. Any person who willfully includes a false statement in the document shall be guilty of perjury. 731.105 In rem proceeding.--Probate proceedings are in rem proceedings. 731.106 Assets of nondomiciliaries.-- (1) A debt in favor of a nondomiciliary, other than one evidenced by investment or commercial paper or other instrument, is located in the county where the debtor resides or, if the debtor is not an individual, at the place where the debtor has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is at the time of death. (2) When a nonresident decedent, whether or not a citizen of the United States, provides by will that the testamentary disposition of tangible or intangible personal property having a situs within this state, or of real property in this state, shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law. The court may, and in the case of a decedent who was at the time of death a resident of a foreign country the court shall, direct the personal representative appointed in this state to make distribution directly to those designated by the decedent's will as beneficiaries of the tangible or intangible property or to the persons entitled to receive the decedent's personal estate under the laws of the decedent's domicile. 731.109 Seal of the court.--For the purposes of this code, the seal of the clerk of the circuit court is the seal of the court. 731.110 Caveat; proceedings.-- (1) Any person, including a creditor, who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without the person's knowledge may file a caveat with the court. (2) A caveat shall contain the decedent's social security number, last known residence address, and date of birth, if they are known, as identification, a statement of the interest of the caveator in the estate, the name and specific residence address of the caveator, and, if the caveator, other than a state agency, is a nonresident of the county, the additional name and specific residence address of some person residing in the county, or office address of a member of The Florida Bar residing in Florida, designated as the agent of the caveator, upon whom service may be made. (3) When a caveat has been filed by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative until the petition for administration has been served on the caveator or the caveator's designated agent by formal notice and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. 731.155 Applicability.--This act shall take effect January 1, 2002. The substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737 as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act, except that any Family Administration filed before January 1, 2002, may be completed as a Family Administration. 731.201 General definitions.--Subject to additional definitions in subsequent chapters that are applicable to specific chapters or parts, and unless the context otherwise requires, in this code, in s. 409.9101, and in chapters 736, 738, 739, and 744, the term: (1) "Authenticated," when referring to copies of documents or judicial proceedings required to be filed with the court under this code, means a certified copy or a copy authenticated according to the Federal Rules of Civil Procedure. (2) "Beneficiary" means heir at law in an intestate estate and devisee in a testate estate. The term "beneficiary" does not apply to an heir at law or a devisee after that person's interest in the estate has been satisfied. In the case of a devise to an existing trust or trustee, or to a trust or trustee described by will, the trustee is a beneficiary of the estate. Except as otherwise provided in this subsection, the beneficiary of the trust is not a beneficiary of the estate of which that trust or the trustee of that trust is a beneficiary. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103(14) shall be regarded as a beneficiary of the estate. (3) "Child" includes a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant. (4) "Claim" means a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes. (5) "Clerk" means the clerk or deputy clerk of the court. (6) "Collateral heir" means an heir who is related to the decedent through a common ancestor but who is not an ancestor or descendant of the decedent. (7) "Court" means the circuit court. (8) "Curator" means a person appointed by the court to take charge of the estate of a decedent until letters are issued. (9) "Descendant" means a person in any generational level down the applicable individual's descending line and includes children, grandchildren, and more remote descendants. The term "descendant" is synonymous with the terms "lineal descendant" and "issue" but excludes collateral heirs. (10) "Devise," when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes "gift," "give," "bequeath," "bequest," and "legacy." A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust. (11) "Devisee" means a person designated in a will or trust to receive a devise. Except as otherwise provided in this subsection, in the case of a devise to an existing trust or trustee, or to a trust or trustee of a trust described by will, the trust or trustee, rather than the beneficiaries of the trust, is the devisee. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103(14) shall be regarded as a devisee. (12) "Distributee" means a person who has received estate property from a personal representative or other fiduciary other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in the trustee's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets. (13) "Domicile" means a person's usual place of dwelling and shall be synonymous with residence. (14) "Estate" means the property of a decedent that is the subject of administration. (15) "Exempt property" means the property of a decedent's estate which is described in s. 732.402. (16) "File" means to file with the court or clerk. (17) "Foreign personal representative" means a personal representative of another state or a foreign country. (18) "Formal notice" means formal notice under the Florida Probate Rules. (19) "Grantor" means one who creates or adds to a trust and includes "settlor" or "trustor" and a testator who creates or adds to a trust. (20) "Heirs" or "heirs at law" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. (21) "Incompetent" means a minor or a person adjudicated incompetent. (22) "Informal notice" or "notice" means informal notice under the Florida Probate Rules. (23) "Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent's estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor's estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings. (24) "Letters" means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and refers to what has been known as letters testamentary and letters of administration. All letters shall be designated "letters of administration." (25) "Other state" means any state of the United States other than Florida and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States. (26) "Parent" excludes any person who is only a stepparent, foster parent, or grandparent. (27) "Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor. (28) "Petition" means a written request to the court for an order. (29) "Power of appointment" means an authority, other than as an incident of the beneficial ownership of property, to designate recipients of beneficial interests in property. (30) "Probate of will" means all steps necessary to establish the validity of a will and to admit a will to probate. (31) "Property" means both real and personal property or any interest in it and anything that may be the subject of ownership. (32) "Protected homestead" means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner's surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned as tenants by the entirety is not protected homestead. (33) "Residence" means a person's place of dwelling. (34) "Residuary devise" means a devise of the assets of the estate which remain after the provision for any devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount. If the will contains no devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount, "residuary devise" or "residue" means a devise of all assets remaining after satisfying the obligations of the estate. (35) "Security" means a security as defined in s. 517.021. (36) "Security interest" means a security interest as defined in s. 671.201. (37) "Trust" means an express trust, private or charitable, with additions to it, wherever and however created. It also includes a trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts; conservatorships; custodial arrangements pursuant to the Florida Uniform Transfers to Minors Act; business trusts providing for certificates to be issued to beneficiaries; common trust funds; land trusts under s. 689.071, except to the extent provided in s. 689.071(7); trusts created by the form of the account or by the deposit agreement at a financial institution; voting trusts; security arrangements; liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another. (38) "Trustee" includes an original, additional, surviving, or successor trustee, whether or not appointed or confirmed by court. (39) "Will" means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person's property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will. 731.301 Notice.-- (1) When notice to an interested person of a petition or other proceeding is required, the notice shall be given to the interested person or that person's attorney as provided in the Florida Probate Rules. (2) Formal notice shall be sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person's interest in the estate. (3) Persons given notice of any proceeding shall be bound by all orders entered in that proceeding. 731.302 Waiver and consent by interested person.--Subsequent to the filing of a petition for administration, an interested person, including a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, or a sole holder or all coholders of a power of revocation or a power of appointment, may waive, to the extent of that person's interest or the interest which that person represents, subject to the provisions of ss. 731.303 and 733.604, any right or notice or the filing of any document, exhibit, or schedule required to be filed and may consent to any action or proceeding which may be required or permitted by this code. 731.303 Representation.--In the administration of or in judicial proceedings involving estates of decedents, the following apply: (1) Persons are bound by orders binding others in the following cases: (a)1. Orders binding the sole holder or all coholders of a power of revocation or a general, special, or limited power of appointment, including one in the form of a power of amendment or revocation to the extent that the power has not become unexercisable in fact, bind all persons to the extent that their interests, as persons who may take by virtue of the exercise or nonexercise of the power, are subject to the power. 2. Subparagraph 1. does not apply to: a. Any matter determined by the court to involve fraud or bad faith by the trustee; b. A power of a trustee to distribute trust property; or c. A power of appointment held by a person while the person is the sole trustee. (b) To the extent there is no conflict of interest between them or among the persons represented: 1. Orders binding a guardian of the property bind the ward. 2. Orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will, in establishing or adding to a trust, in reviewing the acts or accounts of a prior fiduciary, and in proceedings involving creditors or other third parties. However, for purposes of this section, a conflict of interest shall be deemed to exist when each trustee of a trust that is a beneficiary of the estate is also a personal representative of the estate. 3. Orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate, in actions or proceedings by or against the estate. (c) An unborn or unascertained person, or a minor or any other person under a legal disability, who is not otherwise represented is bound by an order to the extent that person's interest is represented by another party having the same or greater quality of interest in the proceeding. (2) Orders binding a guardian of the person shall not bind the ward. (3) In proceedings involving the administration of estates, notice is required as follows: (a) Notice as prescribed by law shall be given to every interested person, or to one who can bind the interested person as described in paragraph (1)(a) or paragraph (1)(b). Notice may be given both to the interested person and to another who can bind him or her. (b) Notice is given to unborn or unascertained persons who are not represented pursuant to paragraph (1)(a) or paragraph (1)(b) by giving notice to all known persons whose interests in the proceedings are the same as, or of a greater quality than, those of the unborn or unascertained persons. (4) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. (5) The holder of a power of appointment over property not held in trust may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power. Representation under this subsection does not apply to: (a) Any matter determined by the court to involve fraud or bad faith by the trustee; (b) A power of a trustee to distribute trust property; or (c) A power of appointment held by a person while the person is the sole trustee. 731.401 Arbitration of disputes.-- (1) A provision in a will or trust requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will or trust, between or among the beneficiaries and a fiduciary under the will or trust, or any combination of such persons or entities, is enforceable. (2) Unless otherwise specified in the will or trust, a will or trust provision requiring arbitration shall be presumed to require binding arbitration under s. 44.104. The following section of the Florida Probate Code deals with intestate succession and wills: 732.101 Intestate estate.-- (1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code. (2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property. 732.102 Spouse's share of intestate estate.--The intestate share of the surviving spouse is: (1) If there is no surviving descendant of the decedent, the entire intestate estate. (2) If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution. (3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate. 732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows: (1) To the descendants of the decedent. (2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them. (3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters. (4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order: (a) To the grandfather and grandmother equally, or to the survivor of them. (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent. (c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above. (5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate. (6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
732.104 Inheritance per stirpes.--Descent shall be per stirpes, whether to descendants or to collateral heirs. 732.105 Half blood.--When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts. 732.106 Afterborn heirs.--Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime. 732.107 Escheat.-- (1) When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state. (2) Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund. (3) At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds shall become absolute. (4) The Department of Legal Affairs shall represent the state in all proceedings concerning escheated estates. (5)(a) If a person entitled to the proceeds assigns the rights to receive payment to an attorney, Florida-certified public accountant, or private investigative agency which is duly licensed to do business in this state pursuant to a written agreement with that person, the Department of Financial Services is authorized to make distribution in accordance with the assignment. (b) Payments made to an attorney, Florida-certified public accountant, or private investigative agency shall be promptly deposited into a trust or escrow account which is regularly maintained by the attorney, Florida-certified public accountant, or private investigative agency in a financial institution authorized to accept such deposits and located in this state. (c) Distribution by the attorney, Florida-certified public accountant, or private investigative agency to the person entitled to the proceeds shall be made within 10 days following final credit of the deposit into the trust or escrow account at the financial institution, unless a party to the agreement protests the distribution in writing before it is made. (d) The department shall not be civilly or criminally liable for any proceeds distributed pursuant to this subsection, provided such distribution is made in good faith. 732.108 Adopted persons and persons born out of wedlock.-- (1) For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family or any prior adoptive parent's family, except that: (a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family. (b) Adoption of a child by a natural parent's spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent. (c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents. (2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father's family, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. (b) The paternity of the father is established by an adjudication before or after the death of the father. (c) The paternity of the father is acknowledged in writing by the father. 732.109 Debts to decedent.--A debt owed to the decedent shall not be charged against the intestate share of any person except the debtor. If the debtor does not survive the decedent, the debt shall not be taken into account in computing the intestate share of the debtor's heirs. 732.1101 Aliens.--Aliens shall have the same rights of inheritance as citizens. 732.111 Dower and curtesy abolished.--Dower and curtesy are abolished. 732.201 Right to elective share.--The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share. 732.2025 Definitions.--As used in ss. 732.2025-732.2155, the term: (1) "Direct recipient" means the decedent's probate estate and any other person who receives property included in the elective estate by transfer from the decedent, including transfers described in s. 732.2035(8), by right of survivorship, or by beneficiary designation under a governing instrument. For this purpose, a beneficiary of an insurance policy on the decedent's life, the net cash surrender value of which is included in the elective estate, is treated as having received property included in the elective estate. In the case of property held in trust, "direct recipient" includes the trustee but excludes the beneficiaries of the trust. (2) "Elective share trust" means a trust under which: (a) The surviving spouse is entitled for life to the use of the property or to all of the income payable at least as often as annually; (b) The surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time; and
(c) During the spouse's life, no person other than the spouse has the
power to distribute income or principal to anyone other than the spouse.
(3) "General power of appointment" means a power of appointment under which the holder of the power, whether or not the holder has the capacity to exercise it, has the power to create a present or future interest in the holder, the holder's estate, or the creditors of either. The term includes a power to consume or invade the principal of a trust, but only if the power is not limited by an ascertainable standard relating to the holder's health, education, support, or maintenance. (4) "Governing instrument" means a deed; will; trust; insurance or annuity policy; account with payable-on-death designation; security registered in beneficiary form (TOD); pension, profit-sharing, retirement, or similar benefit plan; an instrument creating or exercising a power of appointment or a power of attorney; or a dispositive, appointive, or nominative instrument of any similar type. (5) "Payor" means an insurer, business entity, employer, government, governmental agency or subdivision, or any other person, other than the decedent's personal representative or a trustee of a trust created by the decedent, authorized or obligated by law or a governing instrument to make payments. (6) "Person" includes an individual, trust, estate, partnership, association, company, or corporation. (7) "Probate estate" means all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia. (8) "Qualifying special needs trust" or "supplemental needs trust" means a trust established for an ill or disabled surviving spouse with court approval before or after a decedent's death, if, commencing on the decedent's death: (a) The income and principal are distributable to or for the benefit of the spouse for life in the discretion of one or more trustees less than half of whom are ineligible family trustees. For purposes of this paragraph, ineligible family trustees include the decedent's grandparents and any descendants of the decedent's grandparents who are not also descendants of the surviving spouse; and
(b) During the spouse's life, no person other than the spouse has the
power to distribute income or principal to anyone other than the spouse.
(9) "Revocable trust" means a trust that is includable in the elective estate under s. 732.2035(4). (10) "Transfer in satisfaction of the elective share" means an irrevocable transfer by the decedent to an elective share trust. (11) "Transfer tax value" means the value the interest would have for purposes of the United States estate and gift tax laws if it passed without consideration to an unrelated person on the applicable valuation date. 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 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. (3) The decedent's fractional interest in property, other than property described in subsection (2) or subsection (7), 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. (4) That portion of property, other than property described in subsection (2), 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. (5)(a) That portion of property, other than property described in subsection (3), subsection (4), or subsection (7), 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. (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. (6) The decedent's beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent's life. (7) 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. (8) 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 (4) or subsection (5) 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 (4), subsection (5), or subsection (9) 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. (9) Property transferred in satisfaction of the 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 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 whether held by the decedent or by a trust at 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. 732.2055 Valuation of the elective estate.--For purposes of s. 732.2035, "value" means: (1) In the case of any policy of insurance on the decedent's life includable under s. 732.2035(4), (5), or (6), the net cash surrender value of the policy immediately before the decedent's death. (2) In the case of any policy of insurance on the decedent's life includable under s. 732.2035(8), the net cash surrender value of the policy on the date of the termination or transfer. (3) In the case of amounts includable under s. 732.2035(7), the transfer tax value of the amounts on the date of the decedent's death. (4) In the case of other property included under s. 732.2035(8), the fair market value of the property on the date of the termination or transfer, computed after deducting any mortgages, liens, or security interests on the property as of that date. (5) In the case of all other property, the fair market value of the property on the date of the decedent's death, computed after deducting from the total value of the property: (a) All claims paid or payable from the elective estate; and (b) To the extent they are not deducted under paragraph (a), all mortgages, liens, or security interests on the property. 732.2065 Amount of the elective share.--The elective share is an amount equal to 30 percent of the elective estate. 732.2075 Sources from which elective share payable; abatement.-- (1) Unless otherwise provided in the decedent's will or, in the absence of a provision in the decedent's will, in a trust referred to in the decedent's will, the following are applied first to satisfy the elective share: (a) To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of insurance on the decedent's life if, at the time of decedent's death, the policy was owned by any person other than the surviving spouse. (b) To the extent paid to or for the benefit of the surviving spouse, amounts payable under any plan or arrangement described in s. 732.2035(7). (c) To the extent paid to or for the benefit of the surviving spouse, the decedent's one-half of any property described in s. 732.2045(1)(f). (d) Property held for the benefit of the surviving spouse in a qualifying special needs trust. (e) Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests. (f) Property interests that would have satisfied the elective share under any preceding paragraph of this subsection but were disclaimed. (2) If, after the application of subsection (1), the elective share is not fully satisfied, the unsatisfied balance shall be apportioned among the direct recipients of the remaining elective estate in the following order of priority: (a) Class 1.--The decedent's probate estate and revocable trusts. (b) Class 2.--Recipients of property interests, other than protected charitable interests, included in the elective estate under s. 732.2035(2), (3), or (6) and, to the extent the decedent had at the time of death the power to designate the recipient of the property, property interests, other than protected charitable interests, included under s. 732.2035(5) and (7). (c) Class 3.--Recipients of all other property interests, other than protected charitable interests, included in the elective estate.
(d) Class 4.--Recipients of protected charitable lead interests,
but only to the extent and at such times that contribution is permitted
without disqualifying the charitable interest in that property for a
deduction under the United States gift tax laws. (3) The contribution required of the decedent's probate estate and revocable trusts may be made in cash or in kind. In the application of this subsection, subsections (4) and (5) are to be applied to charge contribution for the elective share to the beneficiaries of the probate estate and revocable trusts as if all beneficiaries were taking under a common governing instrument. (4) Unless otherwise provided in the decedent's will or, in the absence of a provision in the decedent's will, in a trust referred to in the decedent's will, any amount to be satisfied from the decedent's probate estate, other than from property passing to an inter vivos trust, shall be paid from the assets of the probate estate in the order prescribed in s. 733.805. (5) Unless otherwise provided in the trust instrument or, in the decedent's will if there is no provision in the trust instrument, any amount to be satisfied from trust property shall be paid from the assets of the trust in the order provided for claims under s. 736.05053(2) and (3). A direction in the decedent's will is effective only for revocable trusts. History.--s. 15, ch. 75-220; s. 7, ch. 99-343; s. 23, ch. 2001-226; s. 4, ch. 2002-82; s. 31, ch. 2006-217; s. 11, ch. 2007-74. 732.2085 Liability of direct recipients and beneficiaries.-- (1) Only direct recipients of property included in the elective estate and the beneficiaries of the decedent's probate estate or of any trust that is a direct recipient, are liable to contribute toward satisfaction of the elective share. (a) Within each of the classes described in s. 732.2075(2)(b), (c), and (d), each direct recipient is liable in an amount equal to the value, as determined under s. 732.2055, of the proportional part of the liability for all members of the class. (b) Trust and probate estate beneficiaries who receive a distribution of principal after the decedent's death are liable in an amount equal to the value of the principal distributed to them multiplied by the contribution percentage of the distributing trust or estate. For this purpose, "contribution percentage" means the remaining unsatisfied balance of the trust or estate at the time of the distribution divided by the value of the trust or estate as determined under s. 732.2055. "Remaining unsatisfied balance" means the amount of liability initially apportioned to the trust or estate reduced by amounts or property previously contributed by any person in satisfaction of that liability. (2) In lieu of paying the amount for which they are liable, beneficiaries who have received a distribution of property included in the elective estate and direct recipients other than the decedent's probate estate or revocable trusts, may: (a) Contribute a proportional part of all property received; or (b) With respect to any property interest received before the date of the court's order of contribution: 1. Contribute all of the property; or
2. If the property has been sold or exchanged prior to the date on
which the spouse's election is filed, pay an amount equal to the value
of the property, less reasonable costs of sale, on the date it was sold
or exchanged. (3) If a person pays the value of the property on the date of a sale or exchange or contributes all of the property received, as provided in paragraph (2)(b): (a) No further contribution toward satisfaction of the elective share shall be required with respect to that property. (b) Any unsatisfied contribution is treated as additional unsatisfied balance and reapportioned to other recipients as provided in s. 732.2075 and this section. (4) If any part of s. 732.2035 or s. 732.2075 is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the elective estate, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in ss. 732.2035 and 732.2075, to the person who would have been entitled to it were that section or part of that section not preempted. 732.2095 Valuation of property used to satisfy elective share.-- (1) DEFINITIONS.--As used in this section, the term: (a) "Applicable valuation date" means: 1. In the case of transfers in satisfaction of the elective share, the date of the decedent's death. 2. In the case of property held in a qualifying special needs trust on the date of the decedent's death, the date of the decedent's death. 3. In the case of other property irrevocably transferred to or for the benefit of the surviving spouse during the decedent's life, the date of the transfer. 4. In the case of property distributed to the surviving spouse by the personal representative, the date of distribution. 5. Except as provided in subparagraphs 1., 2., and 3., in the case of property passing in trust for the surviving spouse, the date or dates the trust is funded in satisfaction of the elective share. 6. In the case of property described in s. 732.2035(2) or (3), the date of the decedent's death. 7. In the case of proceeds of any policy of insurance payable to the surviving spouse, the date of the decedent's death. 8. In the case of amounts payable to the surviving spouse under any plan or arrangement described in s. 732.2035(7), the date of the decedent's death. 9. In all other cases, the date of the decedent's death or the date the surviving spouse first comes into possession of the property, whichever occurs later. (b) "Qualifying power of appointment" means a general power of appointment that is exercisable alone and in all events by the decedent's spouse in favor of the spouse or the spouse's estate. For this purpose, a general power to appoint by will is a qualifying power of appointment if the power may be exercised by the spouse in favor of the spouse's estate without the consent of any other person. (c) "Qualifying invasion power" means a power held by the surviving spouse or the trustee of an elective share trust to invade trust principal for the health, support, and maintenance of the spouse. The power may, but need not, provide that the other resources of the spouse are to be taken into account in any exercise of the power. (2) Except as provided in this subsection, the value of property for purposes of s. 732.2075 is the fair market value of the property on the applicable valuation date. (a) If the surviving spouse has a life interest in property not in trust that entitles the spouse to the use of the property for life, the value of the spouse's interest is one-half of the value of the property on the applicable valuation date. (b) If the surviving spouse has an interest in a trust, or portion of a trust, which meets the requirements of an elective share trust, the value of the spouse's interest is a percentage of the value of the principal of the trust, or trust portion, on the applicable valuation date as follows: 1. One hundred percent if the trust instrument includes both a qualifying invasion power and a qualifying power of appointment. 2. Eighty percent if the trust instrument includes a qualifying invasion power but no qualifying power of appointment. 3. Fifty percent in all other cases. (c) If the surviving spouse is a beneficiary of a trust, or portion of a trust, which meets the requirements of a qualifying special needs trust, the value of the principal of the trust, or trust portion, on the applicable valuation date. (d) If the surviving spouse has an interest in a trust that does not meet the requirements of either an elective share trust or a qualifying special needs trust, the value of the spouse's interest is the transfer tax value of the interest on the applicable valuation date; however, the aggregate value of all of the spouse's interests in the trust shall not exceed one-half of the value of the trust principal on the applicable valuation date. (e) In the case of any policy of insurance on the decedent's life the proceeds of which are payable outright or to a trust described in paragraph (b), paragraph (c), or paragraph (d), the value of the policy for purposes of s. 732.2075 and paragraphs (b), (c), and (d) is the net proceeds. (f) In the case of a right to one or more payments from an annuity or under a similar contractual arrangement or under any plan or arrangement described in s. 732.2035(7), the value of the right to payments for purposes of s. 732.2075 and paragraphs (b), (c), and (d) is the transfer tax value of the right on the applicable valuation date. 732.2105 Effect of election on other interests.--The elective share shall be in addition to homestead, exempt property, and allowances as provided in part IV. 732.2115 Protection of payors and other third parties.--Although a property interest is included in the decedent's elective estate under s. 732.2035(2)-(8), a payor or other third party is not liable for paying, distributing, or transferring the property to a beneficiary designated in a governing instrument, or for taking any other action in good faith reliance on the validity of a governing instrument. 732.2125 Right of election; by whom exercisable.--The right of election may be exercised: (1) By the surviving spouse. (2) With approval of the court having jurisdiction of the probate proceeding by an attorney in fact or a guardian of the property of the surviving spouse. The court shall determine the election as the best interests of the surviving spouse, during the spouse's probable lifetime, require. |
