Recent Amendments Bring Important Changes to Florida's Elective Share.

AuthorDetzel, Lauren Y.
PositionReal Property, Probate and Trust Law

In 2013, the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar convened an ad hoc committee to take a fresh look at Florida's elective share laws, (1) with the objective of identifying and remedying certain issues that, over the years, practical experience proved to be in need of change. Prior to their study, Florida's elective share laws had not been substantially revised since 1999. While not every recommendation of the committee survived legislative scrutiny, amendments enacted during the 2016 and 2017 legislative sessions provide additional protections for surviving spouses and should contribute toward the timely and equitable resolution of elective share disputes. This article discusses many of the important statutory changes made during the prior two years, including the motivation for enacting such changes.

Elective Share Is a Floor, Not a Ceiling

Prior to 1999, Florida law provided a surviving spouse could elect to receive at least 30 percent of the decedent's probate estate. (2) By limiting the elective share to only probate assets, it became all too easy for a decedent to disinherit a spouse, because nonprobate transfers, such as retirement accounts, life insurance, transfer-on-death accounts, and revocable trust assets, were excluded. This changed in 1999 when Florida's elective share laws were substantially revised (3) to replace the decedent's probate estate with an elective estate concept that incorporated virtually all nonprobate assets of a decedent in addition to probate assets. (4) It was not until these changes were enacted that the elective share truly promoted Florida's general public policy of protecting surviving spouses.

For years, many practitioners understood the elective share to provide the baseline for the minimum amount that a decedent must leave his or her spouse; one could always leave more, but not less. Therefore, Florida attorneys routinely advised surviving spouses in situations in which the adequacy of such spouse's inheritance was uncertain that they could not be disadvantaged by making the election. The elective share, in essence, was viewed as a protective election. If it was determined during the administration that the decedent left assets to the surviving spouse totaling more than 30 percent of the elective estate, then the spouse would retain the inheritance he or she received via probate and nonprobate transfers. On the other hand, if it was determined that the decedent left the surviving spouse assets totaling less than 30 percent of the elective estate, the beneficiaries of the decedent's other assets were obligated to remedy the shortfall. This understanding seemed consistent with the overall policy of protecting surviving spouses, especially considering that it was not uncommon for an estate to take several months, or even years, after the deadline for filing the election to calculate the final value of the elective estate.

Florida's elective share was unexpectedly turned on its head in December 2015, however, when the Third District Court of Appeal issued a per curiam affirmed opinion in the case of Richardson v. Perez, 207 So. 3d 886 (Fla. 3d DCA 2015). In Richardson, the surviving spouse timely filed for the elective share within six months of the decedent's death and did not withdraw her election within eight months of the decedent's death in accordance with [section]732.2135(3). Upon calculating the elective share, it was determined the surviving spouse would receive more than 30 percent of the decedent's elective estate when the cash and real property gifted to her under the decedent's will were augmented by the nonprobate assets passing to her. The trial court ruled that the elective share operated as an election to take against the decedent's will, and that, by making the election, the surviving spouse forfeited her right to receive assets in excess of 30 percent of the elective estate. In other words, the election operated to cap the surviving spouse's inheritance at the elective share amount. The Third District's decision to affirm the trial court's ruling without a written opinion shocked many in the Florida probate community because several prominent practitioners, including some who had even worked on the drafting committee for the 1999 overhaul of the election share regime, believed the law was clearly the opposite.

Recognizing the significant impact that Richardson could have on Florida's elective share, an eleventh-hour amendment aimed at overturning Richardson was inserted into House Bill 540 during the 2016 legislative session. Specifically, clarifying language was added to [section]732.201 stating, "The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent." The final bill also included a statement of legislative intent that the amendment to [section]732.201 was made to clarify existing law. (5) Thus, once House Bill 540 was enacted on April 6, 2016, the amendment to [section]732.201 could be applied to all pending elective share proceedings as of that date.

Extension of Time to File

Under prior law, [section]732.2135 generally provided the surviving spouse must file an elective share election on or before the earlier of 1) six months after service of the notice of administration on the spouse, attorney-in-fact, or guardian of property of the spouse, or 2) two years after the decedent's death. A surviving spouse or an attorney-in-fact or guardian of the property of the spouse, however, could petition the court for an extension of time to make the elective share election as long as the petition was filed within such six-month or two-year period, as applicable. Extensions were typically filed in cases in which assets of the decedent or their value...

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