75-220; s. 971, ch. For purposes of this subsection, value is determined on the applicable valuation date as defined in s. 732.2095(1)(a). Except as provided in paragraph (d), for purposes of this subsection: A termination with respect to a right or interest in property occurs when the decedent transfers or relinquishes the right or interest, and, with respect to a power over property, a termination occurs when the power terminates by exercise, release, lapse, default, or otherwise. 97-102; s. 18, ch. Joint Administrative Procedures Committee (JAPC), Joint Committee on Public Counsel Oversight(JCPO), Joint Legislative Auditing Committee (JLAC), Joint Legislative Budget Commission (JLBC), Joint Select Committee on Collective Bargaining (JSCB), Office of Program Policy Analysis & Government Accountability (OPPAGA), Florida Legislative Committee on Intergovernmental Relations (LCIR), Joint Legislative Committee on Everglades Oversight (JCEO), Joint Legislative Sunset Committee (JCSC), Copyright 1995-2023 The Florida Legislature . s. 2, ch. Spousal rights procured by fraud, duress, or undue influence. If the dissolution of marriage judgment expressly provides otherwise. In the case of a defined contribution plan as defined in s. 414(i) of the Internal Revenue Code of 1986, as amended, this subsection shall not apply to the excess of the proceeds of any insurance policy on the decedents life over the net cash surrender value of the policy immediately before the decedents death. 2004-390; s. 102, ch. A will or codicil executed in conformity with s. 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officers certificate attached to or following the will, in substantially the following form: A will or codicil made self-proved under former law, or executed in another state and made self-proved under the laws of that state, shall be considered as self-proved under this section. 74-106; s. 107, ch. This section does not affect the ownership of an interest in an asset as between the former spouse and any other person entitled to such interest by operation of this section, the rights of any purchaser for value of any such interest, the rights of any creditor of the former spouse or any other person entitled to such interest, or the rights and duties of any insurance company, financial institution, trustee, administrator, or other third party. 74-106; s. 11, ch. s. 15, ch. 88-340; s. 46, ch. 81-238; s. 3, ch. Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given. 2001-226. If a refund is made to the surviving spouse or designated child pursuant to the application, the refund shall operate as a complete discharge to the United States from liability from any action, claim, or demand by any beneficiary of the decedent or other person. 2001-226; s. 32, ch. The paternity of the father is acknowledged in writing by the father. A petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedents will offered for probate. I, , declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will. 74-106; s. 8, ch. To the extent that controlling federal law provides otherwise; If the governing instrument is signed by the decedent, or on behalf of the decedent, after the order of dissolution or order declaring the marriage invalid and such governing instrument expressly provides that benefits will be payable to the decedents former spouse; To the extent a will or trust governs the disposition of the assets and s. 732.507(2) or s. 736.1105 applies; If the order of dissolution or order declaring the marriage invalid requires that the decedent acquire or maintain the asset for the benefit of a former spouse or children of the marriage, payable upon the death of the decedent either outright or in trust, only if other assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist upon the death of the decedent; If, under the terms of the order of dissolution or order declaring the marriage invalid, the decedent could not have unilaterally terminated or modified the ownership of the asset, or its disposition upon the death of the decedent; If the designation of the decedents former spouse as a beneficiary is irrevocable under applicable law; If the governing instrument is governed by the laws of a state other than this state; To an asset held in two or more names as to which the death of one co-owner vests ownership of the asset in the surviving co-owner or co-owners; If the decedent remarries the person whose interest would otherwise have been revoked under this section and the decedent and that person are married to one another at the time of the decedents death; or. Probate estate means all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia. All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981. For this purpose, contribution percentage means the remaining unsatisfied balance of the trust or estate at the time of the distribution divided by the value of the trust or estate as determined under s. 732.2055. s. 1, ch. History.s. A petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election must be filed within 6 months after the decedents death and during the surviving spouses lifetime. as identification, by means of physical presence or online notarization. 77-174; s. 185, ch. 2. s. 1, ch. Except as provided in s. 732.2045, the elective estate consists of the sum of the values as determined under s. 732.2055 of the following property interests: The decedents interest in property which constitutes the protected homestead of the decedent. Separate writing identifying devises of tangible property. 2017-121. A general residuary clause in a will, or a will making general disposition of all the testators property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power. 75-220; s. 35, ch. (2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property. 74-106; s. 19, ch. 77-87; s. 1, ch. If the surviving spouse validly waived his or her homestead rights as provided under s. 732.702 or otherwise under applicable law, but nevertheless receives an interest in the protected homestead, other than an interest described in s. 732.401, including an interest in trust, the value of the spouses interest is determined as property interests that are not protected homestead. Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouses probable lifetime. Upon dissolution of marriage, the will shall be construed as if the spouse died at the time of the dissolution of marriage. A distribution from a trust the income or principal of which is subject to subsection (5), subsection (6), or subsection (10) shall be treated as a transfer of property by the decedent and not as a termination of a right or interest in, or a power over, property. 77-87; s. 1, ch. s. 15, ch. For this purpose, spousal consent to split-gift treatment under the United States gift tax laws does not constitute written consent to the transfer by the decedent. 75-220; s. 18, ch. In the case of any policy of insurance on the decedents life includable under s. 732.2035(5), (6), or (7), the net cash surrender value of the policy immediately before the decedents death. The recipients of the decedents property under the order of summary administration shall be personally liable for a pro rata share of all lawful claims against the estate of the decedent, but only to the extent of the value of the estate of the decedent actually received by each recipient, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida. In determining the amount of the remaining unsatisfied balance, the effect, if any, of any change caused by the operation of this subsection in the value of the spouses beneficial interests in property described in paragraphs (1)(a) and (b) shall be taken into account, including, if necessary, further recalculations of the value of those beneficial interests. A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. 97-102; s. 8, ch. 2001-226; s. 7, ch. The intestate share of the surviving spouse is: If there is no surviving descendant of the decedent, the entire intestate estate. The decedents fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety. 74-106; ss. 74-106; s. 34, ch. The person is also a descendant of his or her father and is one of the natural kindred of all members of the fathers family, if: The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. The decedent, , died on . For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parents family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parents family or any prior adoptive parents family, except that: Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parents family. The decedents one-half of that property is not in the elective estate. In the case of an asset described in paragraph (3)(a), paragraph (3)(b), or paragraph (3)(c), unless payment or transfer would violate a court order directed to, and served as required by law on, the payor: If the governing instrument does not explicitly specify the relationship of the beneficiary to the decedent or if the governing instrument explicitly provides that the beneficiary is not the decedents spouse, the payor is not liable for making any payment on account of, or transferring any interest in, the asset to the beneficiary. 74-106; s. 21, ch. In the course of maintaining custody of electronic wills, regularly employ a secure system and store in such secure system electronic records containing: Records attached to or logically associated with electronic wills; and. In the case of any policy of insurance on the decedents life includable under s. 732.2035(9), the net cash surrender value of the policy on the date of the termination or transfer. The notice must be in substantially the following form: Unless and until an election is made under subsection (2), expenses relating to the ownership of the homestead shall be allocated between the surviving spouse, as life tenant, and the decedents descendants, as remaindermen, in accordance with chapter 738. The decedents death is the event that vests the heirs right to the decedents intestate property. Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will. 74-106; s. 10, ch. Joint Administrative Procedures Committee (JAPC), Joint Committee on Public Counsel Oversight(JCPO), Joint Legislative Auditing Committee (JLAC), Joint Legislative Budget Commission (JLBC), Joint Select Committee on Collective Bargaining (JSCB), Office of Program Policy Analysis & Government Accountability (OPPAGA), Florida Legislative Committee on Intergovernmental Relations (LCIR), Joint Legislative Committee on Everglades Oversight (JCEO), Joint Legislative Sunset Committee (JCSC), Copyright 1995-2023 The Florida Legislature . When awarding taxable costs and attorneys fees, the court may direct payment from a partys interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both. 75-220; s. 53, ch. s. 4, ch. s. 1, ch. 77-174; s. 275, ch. A debt owed to the decedent shall not be charged against the intestate share of any person except the debtor. s. 1, ch. 2001-226. 2017-121. 81-27; s. 6, ch. The elective share is an amount equal to 30 percent of the elective estate. When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. 74-106; s. 3, ch. The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. 74-106; s. 8, ch. s. 15, ch. Affiant is a primary beneficiary as that term is defined in Section 732.703, Florida Statutes. When awarding taxable costs or attorney fees, the court may do one or more of the following: Direct payment from a partys interest in the elective share or the elective estate. 2010-132. This is because under Florida Statutes 733.301 the following priority applies: the person nominated by the will, then the spouse, then the person nominated by a majority in interest of heirs, or the heir nearest in . IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA. For this purpose, a general power to appoint by will is a qualifying power of appointment if the power may be exercised by the spouse in favor of the spouses estate without the consent of any other person. A distribution from a trust is not subject to this subsection if the distribution is required by the terms of the governing instrument unless the event triggering the distribution is determined by reference to the death of the decedent and the court finds that a principal purpose of the terms of the governing instrument relating to the distribution is avoidance of the elective share. You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. The paternity of the father is established by an adjudication before or after the death of the father. 33, 35, ch. A petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election. The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B) Title XLII. If the probate of a will is initiated, the original will may be maintained by the clerk with the other pleadings during the pendency of the proceedings, but the will must at all times be retained in its original form for the remainder of the 20-year period whether or not the will is admitted to probate or the proceedings are terminated. Protection of payors and other third parties. Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s. 732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedents death.
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