Blogs from November, 2010


In Florida, the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and courtesy which was the historic basic rights given to a spouse after the death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective share is in addition to the homestead, exempt property, and the family allowance with all other property rights a spouse receives on top of the elective share.  See Fla.Stat. §732.208.  The elective share provisions found in the Florida Probate Code, resulting from the 1999 and 2001 Legislation, consists of Fla.Stat. §§732.201 through 732.2155.

In 1999, the augmented estate concept for the elective share was enacted.  It significantly affects the asset transactions of a married person during his life.  The augmented estate for purposes of determining the elective estate is the probate estate plus all other property brought into the estate under the law, regardless of the time of receipt or the reason or purpose of the transfer.  Under the 1999 Act, the surviving spouse can in essence destroy the decedent’s estate plan and completely eliminate the guiding star of his intent.  The usual situation for an election occurs when the spouse (usually a widow) is a second (or later) wife and there are blood relatives (usually children) of decedent or remainder beneficiaries from an earlier marriage.  Stated one way, the elective share law disregards the rights of the children in favor of the step-mother.  In fact, the elective share law should, in essence, be named The Wicked Step-Mother Relief Act.  See Traywick, Redfearn, Wills & Admen.  In Florida §4:4 (2010-11 ed). 

 The augmented estate is the probate estate plus all other property brought into the estate under the law regardless of the time it was received or the reason or purpose of the transfer.  The elective estate consists of several assets as more fully set forth in Fla.Stat. §732.2035.  Property specifically excluded from the augmentation is more fully set forth in Fla.Stat. §732.2045.  The amount of the elective estate is reduced by the amount of the exclusions.  If a property falls into more than one category for purposes of inclusion of the elective estate, the subsection that results in the largest elective estate value applies, except when the property is a part of the probate estate category then that category governs.  The amount of elective share is 30% of the elective estate.  If not already complicated enough, it is at this point that the real complications in the augmented estate appear.  A dispute often involves the sources from which the elective share is to be paid, the liability of direct recipients of property and beneficiaries of an estate, the valuation of the property used to satisfy the elective share, and the enforcement of contribution from those persons who may be liable.  The decedent may provide in his Will or in a Trust referred to in his Will for the source of payment of the elective share.  If he does not do so, the property is used to satisfy the elective share in the following order:

  1. Property including the elective share that passes for the benefit of the surviving spouse, including interest that is contingent on making the election if the contingent interest does not diminish other property interests that would be applied to satisfy an elective share in the absence of the contingent interest;
  2.  Amounts paid to or for the benefit of the surviving spouse under any public or private pension, retirement or deferred compensation plan or similar arrangement other than a Railroad Retirement Act or Social Security;
  3.  To the extent paid to or for the benefit of the surviving spouse, the decedent’s half interest in any community property;
  4.  Proceeds of any policy of insurance on the decedent’s life owned by any person other than the surviving spouse;
  5.  Property held for the benefit of the surviving spouse and a qualified special needs trust;
  6.  Property interest that would have satisfied the elective share under any proceeding matter but was disclaimed.

If the elective share is not fully satisfied by the foregoing items, the unsatisfied balance is allocated by class among the direct recipients of the asset in the following class order:

  1.  The decedent’s probate estate and any irrevocable trust.
  2.  Recipients of property interest, other than protected charitable interest, including the elective share and accounts or securities registered and pay-on-death, transfer-on-death, in trust for or co-ownership with the right of survivorship form to the extent that the decedent’s interest; tenancy with the right of survivorship property; the net cash surrender value of life insurance on the decedent’s life; to the extent the decedent had the power to designate the recipient at the time of his death, property to which the decedent had the right to the enjoyment of the principal or income; and pension, retirement or deferred compensation plans.
  3.  Recipients of all other property interests other than protected charitable interests.  Such an interest is one for which a charitable deduction was allowed the deduction decedent or decedent’s spouse under federal gift income tax laws.
  4.  Recipients of protected charitable interests to the extent that it does not disqualify the gift tax deduction.

As a result, direct or similar recipients of property included in the elective estate, beneficiaries under the decedent’s probate estate, and of any trust, as a direct recipient are liable for contribution toward satisfaction of the elective share.  They are liable in each class for a proportional part of the liability based on the total liability for all members of the class.  In other words, if any part of the statute specifying the property comprising an elective estate or the sources from which the elective share is payable are not pre-empted by federal law, the person who receives an item of property or other benefits, not for value, is obligated to return the payment, property or benefit or is personally liable for the amount of value of the payment, property or benefit.  See Fla.Stat. §732.2085(4).  In other words, despite a decedent’s clear intent as set forth in a Will, pay-on-death account, or any other instrument in which the decedent named a direct beneficiary, then such designated recipient or beneficiary may be liable to a spouse who seeks an elective share under the new augmented estate concept. In other words, a surviving spouse can claim what is mine is yours and what is yours is mine.  Elective estate determinations, valuations, and contributions are a very complicated area of the law in which you should seek the guidance of an experienced probate litigation attorney to assess your rights and potential obligations.


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