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Elective Share Contribution Obstacles

Written by on Jul 29, 2010| Posted in: Probate Litigation

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can.

Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share. 

For example, a problem arises when a surviving spouse seeks to establish the value of the elective share and then obtain contribution from direct recipients/beneficiaries of the decedent.  I recently encountered a scenario where a decedent, in a second marriage with adult children, left her IRA to her three children.  After death, the surviving spouse petitioned to determine the amount of elective share and sought contribution against the three children who were the recipients of the IRA.  The only assets of the decedent were the IRA and a half interest in a home she owned with her husband.  The children all resided outside of Florida and had received their IRA distributions directly from an out-of-state financial institution.  This petition of the surviving spouse was served upon the three children and the financial institution.  An interesting question arose as to whether Florida courts obtain jurisdiction over a non-resident, direct recipient who is not otherwise interested in the estate.  The issue comes down to one of personal jurisdiction. 

To obtain personal jurisdiction over non-resident defendants and actions involving estates, Florida Rule of Civil Procedure 1.070(h) requires that the lawsuit contain sufficient allegations to assert jurisdiction under Florida’s long-arm statute. This maybe done either by utilizing the language of Florida Statute § 48.193 without pleading supporting facts, or by alleging specific facts demonstrating that defendants’ actions fit within one or more of the subsections of Florida Statute § 48.193.  When a non-resident does not submit to the jurisdiction of the Florida probate court and receives contribution directly from an out-of-state financial institution, a conflict arises between Florida Statute § 732.201 and constitutionally-mandated sufficient minimum contacts to satisfy due process requirements.  In the matter I handled, the Motion to Quash/Dismiss for Lack of Jurisdiction was granted. 

Despite the statute written and passed by the Florida legislature, Florida Probate Rule 5.360 fails to address the jurisdictional problems in the new contribution requirement.  While conceivable that the personal representative of the decedent may be forced to bring lawsuits in each of the states where a direct recipient resides, often times that is simply impractical.  This is an issue the Florida legislature will hopefully address in its next session.

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