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Elective Share for the Surviving Spouse

Written by on Jul 2, 2014| Posted in: Estate Litigation

Can we agree to something else?

The law in Florida is clear in its intentions to protect a surviving spouse from being disinherited.  Fla. Stat. 732.201-732.2155 specifies the applicable rules for a surviving spouse to claim the elective share, which essentially provides that a spouse is entitled to receive 30% of the decedent’s assets upon his or her demise.  This law effectively prevents a spouse from being completely disinherited.

Additionally, “no contest” clauses are provisions in trusts that attempt to prevent or discourage beneficiaries from filing lawsuits relating to a trust by penalizing the beneficiary (typically by causing that beneficiary’s share of the trust to be forfeit).  However, Fla. Stat. 736.1108(1) provides that “no contest” clauses in trusts are unenforceable because they may wrongfully punish a beneficiary who is attempting to remedy the bad acts of another and/or effectuate someone true testamentary intent.

However, can the settlor of a trust find an alternative to the elective share by making other arrangements for his or her spouse in a trust? And if so, is such an arrangement enforceable in the probate court due to Fla. Stat. 736.1108(1)?

The Court in Dinkins v. Dinkins, 120 So.3d 601 (Fla. 1st DCA 2013) heard such a matter wherein a decedent made attempts to discourage his spouse from claiming an elective share by providing a $5,000,000.00 specific devise to her from his trust in exchange for her waiving her right to the elective share.  However, given that his trust estate was valued between $24,000,000.00 and $55,000,000.00, her specific devise may have been substantially less than she would have received as part of an elective share claim.  The clause did not conclusively prevent the spouse from claim the elective share; however, it arguably attempted to reward her for not asserting said right.

When the surviving spouse claimed that this provision was tantamount to a “no contest” clause in violation of Fla. Stat. 736.1108(1), the 1st District Court of Appeals held that this provision was different than other such “no contest” clauses because the provision served more as an alternative to the elective share as opposed to a forfeiture of her statutory rights as the spouse.

This case serves to evidence the complexities in the Florida Probate Rules and the Florida Trust Code. Not only can they be confusing, but if you do not have someone with comprehensive estate and trust litigation experience representing you, you may be harming your own interests.

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