Your surviving sPouse Can eLeCt to reCeive More ProPertY
Real Property Probate & Trust Section
Chairs: Kristin Morris – Shutts & Bowen & Anthony Diecidue – Genders Alvarez Diecidue
T
he Florida legislature
recently made several
important amendments
to Florida’s elective
share statutes. These amendments
bring great news to the surviving
spouses of Florida residents. This
article describes some of the
key changes.
Under section 732.201, Florida
Statutes, the surviving spouse of
a decedent who dies while residing
in Florida is entitled to an elective
share of the decedent’s estate.
Section 732.201 was amended
to make it clear that the elective
share claim of a surviving spouse
sets the minimum amount of assets
the surviving spouse is entitled to.
The surviving spouse must file
the elective share claim by the
earlier of (i) six months after the
spouse is served with Letters of
Administration from the decedent’s
estate or (ii) two years after the
decedent’s death. But under section
732.2135(2), the surviving spouse
can file for an extension of up to
40 days after the filing deadline
if the extension is filed within the
prescribed period.
Before the 2016 amendments,
a decedent’s homestead property
was specifically excluded from the
elective estate. Now, under section
732.2035(2), homestead property
JAN - FEB 2018
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HCBA LAWYER
the parties,
is explicitly
or be paid by
included in the
the prevailing
elective estate,
party. Snyder v.
unless the
surviving spouse
Bell, 746 So.2d
has waived
1100, 1104
his or her
(Fla. 2d DCA
homestead
1999). This
rights.
is a lighter
Under
standard than
section
that previously
732.2085(1),
implemented.
beneficiaries
The awarded
the
florida
legislature
who have
fees and costs
received a
are recoverable
amended florida’s elective
distribution of
by direct
share
laws,
bringing
great
estate property
payment from
included in the
the estate,
news to the surviving spouses
elective estate
direct payment
of florida residents.
must return that
from a party’s
property to the
interest in the
estate if the
elective share
elective estate is
or elective
insufficient to satisfy the surviving
estate, or entry of a judgment
spouse’s elective share. If the
against a party.
beneficiary must return property,
Finally, if the personal repre -
then section 732.2145(1), requires
sentative fails to file a petition to
the beneficiary to pay interest
determine the amount of the elective
on the property at the statutory
share, the surviving spouse may do
interest rate, with interest beginning
so using funds from the estate.
to accrue 90 days after the
Elective share claims can be
contribution order. If there is no
exceptionally complex. Surviving
contribution order, the interest
spouses have been granted much
begins accruing on the elective-
broader elective share rights
share amount left unsatisfied after
through these sweeping legislative
two years of the date of the
changes. Probate attorneys should
decedent’s death.
be well informed of these new
Under section 732.2151(1),
changes and
the court may now award costs,
what these
including attorney fees, in a
changes could
dispute involving entitlement to,
mean for
valuation of, or satisfaction of
their clients.
the elective share as in chancery
actions. In chancery actions, a
Author:
court of equity may order that
David Fall -
costs follow the outcome of the
Older, Lundy