Florida Probate, Trust & Guardianship Litigation

Complete Guide to Florida Elective Share

The Florida Elective Share is a means by which surviving spouses receive a fair share of their deceased spouse’s estate, no matter what the estate planning documents say.  In general, the Florida elective share provides that the surviving spouse is to receive no less than 30% of the deceased spouse’s assets.  See Fla. Stat. s. 732.201.

Making the Election

The elective share must be claimed by a filing with the probate court within 6 months of receipt of a notice of administration, but must be made within 2 years of death.  An attorney in fact or guardian can make the elective share election, but only with court approval.

Extensions

The time for making the elective share election can be extended.  Section 732.2135(4) allows a petition to be filed to claim the elective share.

In Futch v. Haney, an October 13, 2021 opinion from Florida’s Second District Court of Appeal, the Court determined that the surviving spouse’s petitions for extension of time to file her election for elective share were timely under Florida law, and reversed the order of probate court denying her petitions and sustaining the objections to her election.

Decedent Alvin Futch died in April 2019.  Tom Haney filed a petition for administration in June 2019, and was appointed as personal representative of the estate in July 2019.  The notice of administration was filed on August 14, 2019.

On January 6, 2020, Mary Jo Futch, Decedent’s surviving spouse, filed a petition for extension of time to make an election for elective share.  Futch requested a three month extension until April 8, 2020.  As grounds for the request, Futch said that she had recently received documents relating to the calculation of the elective share and she needed time to review them.

On April 7, 2020, Futch filed a second petition for extension of time to make an election for elective share.  Futch cited to limitations imposed by COVID-19, and requested an extension until June 8, 2020 or “a date when the [c]ourt resumes in-person probate proceedings.”  On June 9, 2020, Futch filed a third petition for extension of time to make an election for Florida elective share.

On June 10, 2020, Futch filed her election to take elective share.

The Florida personal representative, the trustees of the decedent’s trust, and the beneficiaries all filed objections to Futch’s election.  The Florida probate court denied Futch’s June 9, 2020 petition for extension on the grounds that it was untimely filed.

The appellate court ruled strongly in favor of the surviving spouse, reading the plain language of the statute to require only a timely filed petition or petitions to extend the time to elect to take an elective share under Florida law:

The plain language of the statute does not limit the amount of time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely subsequent petition seeking additional time, and it does not require a hearing or ruling on a petition in order for the time to be tolled. Subsection (2) addresses when a trial court may grant an extension (for good cause shown) and provides that if the trial court grants the extension, the election must be filed within the time allowed by the extension. But subsection (2) does not require the trial court to grant a petition for extension before the time is tolled; such a reading would render meaningless the tolling provision in subsection (4).

Calculation

How to Calculate the Elective Estate

The elective share calculation starts with a computation of the Elective Estate. The Elective Estate attempts to measure all of the property of the decedent that should be fairly included in the calculation. The Elective Estate includes the following assets:

  • property in the probate estate
  • decedent’s interest in property which constitutes the protected homestead of the decedent
  • gifts within the last year before death
  • pay on death accounts
  • jointly titled assets
  • assets in a revocable trust
  • retirement accounts
  • cash surrender value of life insurance owned by the decedent (but not the death benefit, unless the death benefit is paid to the probate estate)
  • annuities

The personal representative might not know about all of the non-probate assets that comprise the Elective Estate, so may need to investigate. A surviving spouse might also perform discovery to try to identify and value all of the potential assets of the Elective Estate.

Net Elective Estate

Once the Elective Estate is determined, the Net Elective Estate is calculated. Essentially, liabilities of the decedent are subtracted from the Elective Estate to determine the Net Elective Estate. Importantly, expenses of administration are not liabilities for this purpose and therefore do not reduce the Net Elective Estate in Florida. (Other states have a different rule.) A consequence of not taking into account expenses of administration is that any attorney fees or costs incurred in litigating an elective share dispute are borne by the other beneficiaries of the estate, not the surviving spouse seeking elective share.

Elective Share

Once the Net Elective Estate is computed (Elective Estate – Liabilities of the Decedent), 30% of such amount is the Elective Share.  See Fla. Stat. s. 732.2065.

Satisfaction of Elective Share

Next is to compute the Satisfaction of the Elective Share. The amount needed to satisfy the Elective Share is simple – the amount of the Elective Share minus that amounts already received (or to be received) by the surviving spouse from all sources as a result of the death of the decedent.

In some cases, the surviving spouse has already received the full value of the Elective Share, and in other cases there is an amount that remains that must be paid to the surviving spouse to fully satisfy the Elective Share.

To pay that portion of the Elective Share not yet paid, the Florida Probate Code sets forth an ordering of what assets are used to satisfy the Elective Share.  The Florida elective share statute s. 732.2075 sets forth several classes of assets to satisfy the Elective Share, in the following order:

  • Class 1: The Decedent’s probate estate and revocable trusts
  • Class 2: Pay on Death, Transfer on Death and In Trust for Accounts; Property held as Joint Tenants with Right of Survivorship or Tenancy by the Entirety; life insurance cash surrender value
  • Class 3: Any other property interest included in the Elective Estate computation

Interest

In Blackburn v. Boulis, the Florida Fourth District Court of Appeal addressed whether the elective share earns interest, and whether the elective share can be reduced by attorney fees. 

Because of the delay in payment of the elective share, a dispute arose as to the payment of interest.  In charging the estate interest due to a delay in paying the elective share, the Court reasoned as follows:   

As implied by the probate court’s orders, it would be inequitable for Spouse to be denied the opportunity for a reasonable return on her court-determined minimum elective share. However, it would likewise have been inequitable for Spouse to enjoy a windfall of interest on a portion of the value of her minimum elective share which, due to taxes, she would not be entitled to retain.

Attorney Fees

The Blackburn Court also held that the elective share is not reduced by the payment of the estate’s attorney fees.  The Florida elective share is “purely a creature of statute created by Florida’s Legislature as a replacement for the common law doctrine of “dower and curtesy.”   The 1998 version of the surviving spouse’s elective share statute was applicable to this appeal.  The 1998 statute provided that:

732.207 Amount of the elective share.–The elective share shall consist of an amount equal to 30 percent of the fair market value, on the date of death, of all assets referred to in s. 732.206, computed after deducting from the total value of the assets:

(1) All valid claims against the estate paid or payable from the estate; and

(2) All mortgages, liens, or security interests on the assets.

Because attorney fees are not a permitted statutory deduction, the elective share is not reduced by such fees.

Waiver

The right to receive an elective share can be waived by a valid marital agreement.

Given the passage of time, married couple may wish to alter their premarital arrangement, to give a surviving spouse far more than was contracted for.  Coordinating the existing marital agreement with estate planning documents is critical, as the case of Wilson v. Wilson explains.

The Wilsons entered into a prenuptial agreement.  In the prenuptial agreement, each waived their right to an elective share.  However, the prenuptial agreement allowed the couple to make testamentary gifts to each other by will or codicil without invalidating the prenuptial agreement:

Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other. Either of the parties may elect to make a gift to the other by Will without invalidating this provision and may thereafter change or eliminate the gift by a codicil or another Will without in any way affecting the continued effectiveness of this Agreement.

Any changes to the prenuptial agreement had to be in writing and signed by both the wife and the decedent.

The husband then executed a will and created a trust.  In the trust, the husband directed the trustee to set aside:

as much property as is necessary to satisfy the wife’s elective share pursuant to Section 732.201, et seq., of the Florida Statutes, provided the requirements thereunder are satisfied and a timely election is filed.

Only the husband signed his will and his trust.

The wife filed a notice of election to take elective share.

Decedent’s son, and trustee of the trust, moved to strike the wife’s election to take elective share.

The probate court struck the election.  The trial court found that the prenuptial agreement:

  • permitted the parties only to give testamentary gifts by will or codicil (not by trust)
  • waived the wife’s ability to receive an elective share
  • could only be modified in writing with the signature of both parties

The decision was affirmed on appeal.  The appellate court held that the wife waived her right to an elective share, and that the husband’s trust did not modify the prenuptial agreement because it was not signed by the wife.  The court further stated that:

If the decedent intended to give the wife a testamentary gift, he could have done so by will or codicil without relying on an elective share and specifically the requirements of the elective share statute.

Therefore, even though the husband’s intent was to give his wife an amount equal to the elective share, the requirement that the wife actually elect to take an elective share was the fatal flaw.  The prenuptial agreement waived the wife’s right to an elective share, and she was prevented from pursuing it, despite the language in the Trust.

The result in Wilson is really unfortunate.  The husband wanted his wife to have property in the amount of her elective share.  By focusing on the mechanism (obviously flawed) for how the wife was to receive her bequest, the court ignored the husband’s intent and rigidly focused on the prenuptial agreement, which neither the husband, nor the wife, wanted to control the outcome.  Under the court’s logic, the result could have been different if the wife had just signed the trust, because then the prenuptial could have been considered modified.

FAQ

Can the Florida elective share be defeated by giving away assets before death?

Yes, but only for assets given away more than one year prior to death.  If assets are given away more than one year prior to death, but the recipient of the gift gives money back to the deceased for living expenses, the entire arrangement is likely to be struck down as a sham.

Are assets in a revocable trust included?

Yes. All assets in a revocable trust are included in the elective estate.

Can the Personal Representative of the surviving spouse claim the elective share?

No.  The elective share can only be claimed during the lifetime of the surviving spouse.

What if the surviving spouse dies before receiving the satisfaction amount?

So long as the election is made before the surviving spouse dies, the surviving spouse’s estate is entitled to receive the elective share.

What if a divorce is pending at death?

Under Florida law, it does not matter if a divorce is pending when the spouse dies.  If the spouses were married at death, the surviving spouse is entitled to the elective share.

Is an attorney required?

No.  an attorney is not required to claim the elective share, but given the complexity involved, one is highly recommended.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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