Senate Bill sb1936c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                           CS for SB 1936

    By the Committee on Judiciary; and Senator Joyner





    590-2217-07

  1                      A bill to be entitled

  2         An act relating to probate; amending s. 222.21,

  3         F.S.; specifying additional circumstances under

  4         which certain funds or accounts are not exempt

  5         from a surviving spouse's claims; amending s.

  6         731.110, F.S.; providing a prerequisite to

  7         admitting a will to probate or appointing a

  8         personal representative under certain

  9         circumstances; amending s. 731.201, F.S.;

10         defining the terms "collateral heirs" and

11         "descendant"; creating s. 731.401, F.S.;

12         providing for enforceability of will or trust

13         provisions requiring arbitration of certain

14         disputes; amending ss. 732.102, 732.103,

15         732.104, 732.108, 732.401, and 732.507, F.S.;

16         conforming provisions to new definitions;

17         amending s. 732.2025, F.S.; revising the

18         definition of "elective share trust"; amending

19         ss. 732.2035 and 732.2075, F.S.; revising

20         provisions relating to the elective estate and

21         elective share; amending s. 732.4015, F.S.;

22         revising a provision prohibiting devise of a

23         homestead; creating s. 733.620, F.S.; providing

24         for unenforceability and invalidity of certain

25         will provisions exculpating personal

26         representatives; amending s. 734.101, F.S.;

27         increasing a time period for procedures

28         relating to foreign personal representatives;

29         amending s. 895.02, F.S.; correcting a

30         cross-reference; providing an effective date.

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Paragraph (d) of subsection (2) of section

 4  222.21, Florida Statutes, is amended to read:

 5         222.21  Exemption of pension money and certain

 6  tax-exempt funds or accounts from legal processes.--

 7         (2)

 8         (d)  Any fund or account described in paragraph (a) is

 9  not exempt from the claims of an alternate payee under a

10  qualified domestic relations order or from the claims of a

11  surviving spouse pursuant to an order determining the amount

12  of elective share and contribution as provided in part II of

13  chapter 732. However, the interest of any alternate payee

14  under a qualified domestic relations order is exempt from all

15  claims of any creditor, other than the Department of Revenue,

16  of the alternate payee. As used in this paragraph, the terms

17  "alternate payee" and "qualified domestic relations order"

18  have the meanings ascribed to them in s. 414(p) of the

19  Internal Revenue Code of 1986.

20         Section 2.  Subsection (3) is added to section 731.110,

21  Florida Statutes, to read:

22         731.110  Caveat; proceedings.--

23         (3)  When a caveat has been filed by an interested

24  person other than a creditor, the court shall not admit a will

25  of the decedent to probate or appoint a personal

26  representative until the petition for administration has been

27  served on the caveator or the caveator's designated agent by

28  formal notice and the caveator has had the opportunity to

29  participate in proceedings on the petition, as provided by the

30  Florida Probate Rules.

31  

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1         Section 3.  Subsections (6) and (7) and subsections (8)

 2  through (37) of section 731.201, Florida Statutes, as amended

 3  by section 29 of chapter 2006-217, Laws of Florida, are

 4  renumbered as subsections (7) and (8) and subsections (10)

 5  through (39), respectively, and new subsections (6) and (9)

 6  are added to that section, to read:

 7         731.201  General definitions.--Subject to additional

 8  definitions in subsequent chapters that are applicable to

 9  specific chapters or parts, and unless the context otherwise

10  requires, in this code, in s. 409.9101, and in chapters 736,

11  738, 739, and 744, the term:

12         (6)  "Collateral heir" means an heir who is related to

13  the decedent through a common ancestor but who is not an

14  ancestor or descendant of the decedent.

15         (9)  "Descendant" means a person in any generational

16  level down the applicable individual's descending line and

17  includes children, grandchildren, and more remote descendants.

18  The term "descendant" is synonymous with the terms "lineal

19  descendant" and "issue" but excludes collateral heirs.

20         Section 4.  Section 731.401, Florida Statutes, is

21  created to read:

22         731.401  Arbitration of disputes.--

23         (1)  A provision in a will or trust requiring the

24  arbitration of disputes, other than disputes of the validity

25  of all or a part of a will or trust, between or among the

26  beneficiaries and a fiduciary under the will or trust, or any

27  combination of such persons or entities, is enforceable.

28         (2)  Unless otherwise specified in the will or trust, a

29  will or trust provision requiring arbitration shall be

30  presumed to require binding arbitration under s. 44.104.

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1         Section 5.  Section 732.102, Florida Statutes, is

 2  amended to read:

 3         732.102  Spouse's share of intestate estate.--The

 4  intestate share of the surviving spouse is:

 5         (1)  If there is no surviving lineal descendant of the

 6  decedent, the entire intestate estate.

 7         (2)  If there are surviving lineal descendants of the

 8  decedent, all of whom are also lineal descendants of the

 9  surviving spouse, the first $60,000 of the intestate estate,

10  plus one-half of the balance of the intestate estate. Property

11  allocated to the surviving spouse to satisfy the $60,000 shall

12  be valued at the fair market value on the date of

13  distribution.

14         (3)  If there are surviving lineal descendants, one or

15  more of whom are not lineal descendants of the surviving

16  spouse, one-half of the intestate estate.

17         Section 6.  Subsections (1), (2), and (6) of section

18  732.103, Florida Statutes, are amended to read:

19         732.103  Share of other heirs.--The part of the

20  intestate estate not passing to the surviving spouse under s.

21  732.102, or the entire intestate estate if there is no

22  surviving spouse, descends as follows:

23         (1)  To the lineal descendants of the decedent.

24         (2)  If there is no lineal descendant, to the

25  decedent's father and mother equally, or to the survivor of

26  them.

27         (6)  If none of the foregoing, and if any of the

28  descendants of the decedent's great-grandparents were

29  Holocaust victims as defined in s. 626.9543(3)(a), including

30  such victims in countries cooperating with the discriminatory

31  policies of Nazi Germany, then to the lineal descendants of

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  the great-grandparents. The court shall allow any such

 2  descendant to meet a reasonable, not unduly restrictive,

 3  standard of proof to substantiate his or her lineage. This

 4  subsection only applies to escheated property and shall cease

 5  to be effective for proceedings filed after December 31, 2004.

 6         Section 7.  Section 732.104, Florida Statutes, is

 7  amended to read:

 8         732.104  Inheritance per stirpes.--Descent shall be per

 9  stirpes, whether to lineal descendants or to collateral heirs.

10         Section 8.  Section 732.108, Florida Statutes, is

11  amended to read:

12         732.108  Adopted persons and persons born out of

13  wedlock.--

14         (1)  For the purpose of intestate succession by or from

15  an adopted person, the adopted person is a lineal descendant

16  of the adopting parent and is one of the natural kindred of

17  all members of the adopting parent's family, and is not a

18  lineal descendant of his or her natural parents, nor is he or

19  she one of the kindred of any member of the natural parent's

20  family or any prior adoptive parent's family, except that:

21         (a)  Adoption of a child by the spouse of a natural

22  parent has no effect on the relationship between the child and

23  the natural parent or the natural parent's family.

24         (b)  Adoption of a child by a natural parent's spouse

25  who married the natural parent after the death of the other

26  natural parent has no effect on the relationship between the

27  child and the family of the deceased natural parent.

28         (c)  Adoption of a child by a close relative, as

29  defined in s. 63.172(2), has no effect on the relationship

30  between the child and the families of the deceased natural

31  parents.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1         (2)  For the purpose of intestate succession in cases

 2  not covered by subsection (1), a person born out of wedlock is

 3  a lineal descendant of his or her mother and is one of the

 4  natural kindred of all members of the mother's family. The

 5  person is also a lineal descendant of his or her father and is

 6  one of the natural kindred of all members of the father's

 7  family, if:

 8         (a)  The natural parents participated in a marriage

 9  ceremony before or after the birth of the person born out of

10  wedlock, even though the attempted marriage is void.

11         (b)  The paternity of the father is established by an

12  adjudication before or after the death of the father.

13         (c)  The paternity of the father is acknowledged in

14  writing by the father.

15         Section 9.  Subsection (2) of section 732.2025, Florida

16  Statutes, is amended to read:

17         732.2025  Definitions.--As used in ss.

18  732.2025-732.2155, the term:

19         (2)  "Elective share trust" means a trust under which

20  where:

21         (a)  The surviving spouse is entitled for life to the

22  use of the property or to all of the income payable at least

23  as often as annually;

24         (b)  The trust is subject to the provisions of former

25  s. 738.12 or the surviving spouse has the right under the

26  terms of the trust or state law to require the trustee either

27  to make the property productive or to convert it within a

28  reasonable time; and

29         (c)  During the spouse's life, no person other than the

30  spouse has the power to distribute income or principal to

31  anyone other than the spouse.

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  

 2  As used in this subsection, the term "income" has the same

 3  meaning as that provided in s. 643(b) of the Internal Revenue

 4  Code, as amended, and regulations adopted under that section.

 5         Section 10.  Paragraph (b) of subsection (8) of section

 6  732.2035, Florida Statutes, is amended to read:

 7         732.2035  Property entering into elective

 8  estate.--Except as provided in s. 732.2045, the elective

 9  estate consists of the sum of the values as determined under

10  s. 732.2055 of the following property interests:

11         (8)  Property that was transferred during the 1-year

12  period preceding the decedent's death as a result of a

13  transfer by the decedent if the transfer was either of the

14  following types:

15         (b)  Any transfer of property to the extent not

16  otherwise included in the elective estate, made to or for the

17  benefit of any person, except:

18         1.  Any transfer of property for medical or educational

19  expenses to the extent it qualifies for exclusion from the

20  United States gift tax under s. 2503(e) of the Internal

21  Revenue Code, as amended; and

22         2.  After the application of subparagraph (b)1., the

23  first annual exclusion amount $10,000 of property transferred

24  to or for the benefit of each donee during the 1-year period,

25  but only to the extent the transfer qualifies for exclusion

26  from the United States gift tax under s. 2503(b) or (c) of the

27  Internal Revenue Code, as amended. For purposes of this

28  subparagraph, the term "annual exclusion amount" means the

29  amount of one annual exclusion under s. 2503(b) or s. 2503(c)

30  of the Internal Revenue Code, as amended.

31  

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1         Section 11.  Subsection (2) of section 732.2075,

 2  Florida Statutes, is amended to read:

 3         732.2075  Sources from which elective share payable;

 4  abatement.--

 5         (2)  If, after the application of subsection (1), the

 6  elective share is not fully satisfied, the unsatisfied balance

 7  shall be apportioned among the direct recipients of the

 8  remaining elective estate in the following order of priority:

 9         (a)  Class 1.--The decedent's probate estate and

10  revocable trusts.

11         (b)  Class 2.--Recipients of property interests, other

12  than protected charitable interests, included in the elective

13  estate under s. 732.2035(2), (3), or (6) and, to the extent

14  the decedent had at the time of death the power to designate

15  the recipient of the property, property interests, other than

16  protected charitable interests, included under s. 732.2035(5)

17  and (7).

18         (c)  Class 3.--Recipients of all other property

19  interests, other than protected charitable interests, included

20  in the elective estate.

21         (d)  Class 4.--Recipients of protected charitable lead

22  interests, but only to the extent and at such times that

23  contribution is permitted without disqualifying the charitable

24  interest in that property for a deduction under the United

25  States gift tax laws.

26  

27  For purposes of this subsection, a protected charitable

28  interest is any interest for which a charitable deduction with

29  respect to the transfer of the property was allowed or

30  allowable to the decedent or the decedent's spouse under the

31  United States gift or income tax laws. A protected charitable

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  lead interest is a protected charitable interest where one or

 2  more deductible interests in charity precede some other

 3  nondeductible interest or interests in the property.

 4         Section 12.  Subsection (1) of section 732.401, Florida

 5  Statutes, is amended to read:

 6         732.401  Descent of homestead.--

 7         (1)  If not devised as permitted by law and the Florida

 8  Constitution, the homestead shall descend in the same manner

 9  as other intestate property; but if the decedent is survived

10  by a spouse and one or more lineal descendants, the surviving

11  spouse shall take a life estate in the homestead, with a

12  vested remainder to the lineal descendants in being at the

13  time of the decedent's death per stirpes.

14         Section 13.  Subsection (1) of section 732.4015,

15  Florida Statutes, is amended to read:

16         732.4015  Devise of homestead.--

17         (1)  As provided by the Florida Constitution, the

18  homestead shall not be subject to devise if the owner is

19  survived by a spouse or a minor child or minor children,

20  except that the homestead may be devised to the owner's spouse

21  if there is no minor child or minor children.

22         Section 14.  Subsection (1) of section 732.507, Florida

23  Statutes, is amended to read:

24         732.507  Effect of subsequent marriage, birth,

25  adoption, or dissolution of marriage.--

26         (1)  Neither subsequent marriage, birth, nor adoption

27  of lineal descendants shall revoke the prior will of any

28  person, but the pretermitted child or spouse shall inherit as

29  set forth in ss. 732.301 and 732.302, regardless of the prior

30  will.

31  

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1         Section 15.  Section 733.620, Florida Statutes, is

 2  created to read:

 3         733.620  Exculpation of personal representative.--

 4         (1)  A term of a will relieving a personal

 5  representative of liability to a beneficiary for breach of

 6  fiduciary duty is unenforceable to the extent that the term:

 7         (a)  Relieves the personal representative of liability

 8  for breach of fiduciary duty committed in bad faith or with

 9  reckless indifference to the purposes of the will or the

10  interests of interested persons; or

11         (b)  Was inserted into the will as the result of an

12  abuse by the personal representative of a fiduciary or

13  confidential relationship with the testator.

14         (2)  An exculpatory term drafted or caused to be

15  drafted by the personal representative is invalid as an abuse

16  of a fiduciary or confidential relationship unless:

17         (a)  The personal representative proves that the

18  exculpatory term is fair under the circumstances.

19         (b)  The term's existence and contents were adequately

20  communicated directly to the testator or the independent

21  attorney of the testator. This paragraph applies only to wills

22  created on or after July 1, 2007.

23         Section 16.  Subsections (3) and (4) of section

24  734.101, Florida Statutes, are amended to read:

25         734.101  Foreign personal representative.--

26         (3)  Debtors who have not received a written demand for

27  payment from a personal representative or curator appointed in

28  this state within 90 60 days after appointment of a personal

29  representative in any other state or country, and whose

30  property in Florida is subject to a mortgage or other lien

31  securing the debt held by the foreign personal representative,

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  may pay the foreign personal representative after the

 2  expiration of 90 60 days from the date of appointment of the

 3  foreign personal representative. Thereafter, a satisfaction of

 4  the mortgage or lien executed by the foreign personal

 5  representative, with an authenticated copy of the letters or

 6  other evidence of authority attached, may be recorded in the

 7  public records. The satisfaction shall be an effective

 8  discharge of the mortgage or lien, irrespective of whether the

 9  debtor making payment had received a written demand before

10  paying the debt.

11         (4)  Except as provided in s. 655.936, all persons

12  indebted to the estate of a decedent, or having possession of

13  personal property belonging to the estate, who have received

14  no written demand from a personal representative or curator

15  appointed in this state for payment of the debt or the

16  delivery of the property are authorized to pay the debt or to

17  deliver the personal property to the foreign personal

18  representative after the expiration of 90 60 days from the

19  date of appointment of the foreign personal representative.

20         Section 17.  Subsection (10) of section 895.02, Florida

21  Statutes, is amended to read:

22         895.02  Definitions.--As used in ss. 895.01-895.08, the

23  term:

24         (10)  "Trustee" means any of the following:

25         (a)  Any person acting as trustee pursuant to a trust

26  established under s. 689.07 or s. 689.071 in which the trustee

27  holds legal or record title to real property.

28         (b)  Any person who holds legal or record title to real

29  property in which any other person has a beneficial interest.

30         (c)  Any successor trustee or trustees to any or all of

31  the foregoing persons.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                           CS for SB 1936
    590-2217-07




 1  

 2  However, the term "trustee" does not include any person

 3  appointed or acting as a personal representative as defined in

 4  s. 731.201(27)(25) or appointed or acting as a trustee of any

 5  testamentary trust or as a trustee of any indenture of trust

 6  under which any bonds have been or are to be issued.

 7         Section 18.  This act shall take effect July 1, 2007.

 8  

 9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                             SB 1936

11                                 

12  The committee substitute differs from the underlying bill in
    that it:
13  
    --   clarifies that a petition for administration is what must
14       be served on a caveator or the agent of a caveator;

15  --   makes technical changes to the definition of the term
         "collateral heir"; and
16  
    --   validates certain limitations on a personal
17       representative's liability contained in a will if the
         limitation was communicated to the testator's attorney.
18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.