House Bill 0301e1

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  1                      A bill to be entitled

  2         An act relating to probate; amending s.

  3         732.201, F.S.; revising language with respect

  4         to the right to elective share; creating s.

  5         732.2025, F.S.; providing definitions; creating

  6         s. 732.2035, F.S.; providing for property

  7         entering into the elective estate; creating s.

  8         732.2045, F.S.; providing for exclusions and

  9         overlapping application; amending s. 732.205,

10         F.S.; providing for the valuation of the

11         elective estate; amending s. 732.206, F.S.;

12         providing for the elective share amount;

13         amending s. 732.207, F.S.; providing for the

14         sources from which the elective share is

15         payable; providing for abatement; amending s.

16         732.208, F.S.; providing for the liability of

17         direct recipients and beneficiaries; amending

18         s. 732.209, F.S.; providing for the valuation

19         of the property used to satisfy the elective

20         share; amending s. 732.210, F.S.; providing for

21         the effect of the election on other interests;

22         amending s. 732.211, F.S.; providing for the

23         protection of payors and other third parties;

24         amending s. 732.212, F.S.; providing who may

25         exercise the right of election; amending s.

26         732.213, F.S.; providing for the time of

27         election; providing for extensions and for

28         withdrawal; amending s. 732.214, F.S.;

29         providing for the order of contribution;

30         providing for the personal representative's

31         duty to collect contributions; amending s.


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  1         732.215, F.S.; providing for the effective

  2         date, inapplicability of ch. 61, F.S., the

  3         effect of prior waivers, and transition rules;

  4         providing an effective date.

  5

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

  7

  8         Section 1.  Section 732.201, Florida Statutes, is

  9  amended to read:

10         732.201  Right to elective share.--The surviving spouse

11  of a person who dies domiciled in Florida has shall have the

12  right to a share of the elective estate of the decedent

13  deceased spouse as provided in this part, to be designated the

14  elective share.

15         Section 2.  Section 732.2025, Florida Statutes, is

16  created to read:

17         732.2025  Definitions.--As used in sections

18  732.2025-732.215, the term:

19         (1)  "Direct recipient" means the decedent's probate

20  estate and any other person who receives property included in

21  the elective estate by transfer from the decedent, including

22  transfers described in s. 732.2035(8), by right of

23  survivorship, or by beneficiary designation under a governing

24  instrument. For this purpose, a beneficiary of an insurance

25  policy on the decedent's life, the net cash surrender value of

26  which is included in the elective estate, is treated as having

27  received property included in the elective estate. In the case

28  of property held in trust, "direct recipient" includes the

29  trustee but excludes the beneficiaries of the trust.

30         (2)  "Elective share trust" means a trust where:

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

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

  3  as often as annually;

  4         (b)  The trust is subject to the provisions of s.

  5  738.12 or the surviving spouse has the right under the terms

  6  of the trust or state law to require the trustee either to

  7  make the property productive or to convert it within a

  8  reasonable time; and

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

10  spouse has the power to distribute income or principal to

11  anyone other than the spouse.

12         (3)  "General power of appointment" means a power of

13  appointment under which the holder of the power, whether or

14  not the holder has the capacity to exercise it, has the power

15  to create a present or future interest in the holder, the

16  holder's estate, or the creditors of either. The term includes

17  a power to consume or invade the principal of a trust, but

18  only if the power is not limited by an ascertainable standard

19  relating to the holder's health, education, support, or

20  maintenance.

21         (4)  "Governing instrument" means a deed, will, trust,

22  insurance or annuity policy, account with payable-on-death

23  designation, security registered in beneficiary form (TOD),

24  pension, profit-sharing, retirement, or similar benefit plan,

25  instrument creating or exercising a power of appointment or a

26  power of attorney, or a dispositive, appointive, or nominative

27  instrument of any similar type.

28         (5)  "Payor" means an insurer, business entity,

29  employer, government, governmental agency or subdivision, or

30  any other person, other than the decedent's personal

31  representative or a trustee of a trust created by the


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  1  decedent, authorized or obligated by law or a governing

  2  instrument to make payments.

  3         (6)  "Person" includes an individual, trust, estate,

  4  partnership, association, company, or corporation.

  5         (7)  "Probate estate" means all property wherever

  6  located that is subject to estate administration in any state

  7  of the United States or in the District of Columbia.

  8         (8)  "Qualifying special needs trust" or "supplemental

  9  needs trust" means a trust established for an ill or disabled

10  surviving spouse with court approval before or after a

11  decedent's death for such incapacitated surviving spouse, if,

12  commencing on the decedent's death:

13         (a)  The income and principal are distributable to or

14  for the benefit of the spouse for life in the discretion of

15  one or more trustees less than half of whom are ineligible

16  family trustees.  For purposes of this paragraph, ineligible

17  family trustees include the decedent's grandparents and any

18  descendants of the decedent's grandparents who are not also

19  descendants of the surviving spouse;

20         (b)  During the spouse's life, no person other than the

21  spouse has the power to distribute income or principal to

22  anyone other than the spouse; and

23         (c)  The requirement for court approval and the

24  limitation on ineligible family trustees shall not apply if

25  the aggregate of the trust property as of the applicable

26  valuation date in qualifying special needs trusts is less than

27  $100,000.

28         (9)  "Revocable trust" means a trust that is includable

29  in the elective estate under s. 732.2035(4).

30

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  1         (10)  "Transfer in satisfaction of the elective share"

  2  means an irrevocable transfer by the decedent to an elective

  3  share trust.

  4         (11)  "Transfer tax value" means the value the interest

  5  would have for purposes of the United States estate and gift

  6  tax laws if it passed without consideration to an unrelated

  7  person on the applicable valuation date.

  8         Section 3.  Section 732.2035, Florida Statutes, is

  9  created to read:

10         732.2035  Property entering into elective

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

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

13  s. 732.205 of the property interests described in this

14  section.

15         (1)  The decedent's probate estate.

16         (2)  The decedent's ownership interest in accounts or

17  securities registered in "Pay On Death," "Transfer On Death,"

18  "In Trust For," or coownership with right of survivorship

19  form.  For this purpose, "decedent's ownership interest" means

20  that portion of the accounts or securities which the decedent

21  had, immediately before death, the right to withdraw or use

22  without the duty to account to any person.

23         (3)  The decedent's fractional interest in property,

24  other than property described in subsection (2) or subsection

25  (7), held by the decedent in joint tenancy with right of

26  survivorship or in tenancy by the entirety. For this purpose,

27  "decedent's fractional interest in property" means the value

28  of the property divided by the number of tenants.

29         (4)  That portion of property, other than property

30  described in subsection (2), transferred by the decedent to

31  the extent that at the time of the decedent's death the


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  1  transfer was revocable by the decedent alone or in conjunction

  2  with any other person. This subsection does not apply to a

  3  transfer that is revocable by the decedent only with the

  4  consent of all persons having a beneficial interest in the

  5  property.

  6         (5)(a)  That portion of property, other than property

  7  described in subsection (3), subsection (4), or subsection

  8  (7), transferred by the decedent to the extent that at the

  9  time of the decedent's death:

10         1.  The decedent possessed the right to, or in fact

11  enjoyed the possession or use of, the income or principal of

12  the property; or

13         2.  The principal of the property could, in the

14  discretion of any person other than the spouse of the

15  decedent, be distributed or appointed to or for the benefit of

16  the decedent.

17

18  In the application of this subsection, a right to payments

19  from an annuity or under a similar contractual arrangement

20  shall be treated as a right to that portion of the income of

21  the property necessary to equal the annuity or other

22  contractual payment.

23         (b)  The amount included under this subsection is:

24         1.  With respect to subparagraph (a)1., the value of

25  the portion of the property to which the decedent's right or

26  enjoyment related, to the extent the portion passed to or for

27  the benefit of any person other than the decedent's probate

28  estate; and

29         2.  With respect to subparagraph (a)2., the value of

30  the portion subject to the discretion, to the extent the

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  1  portion passed to or for the benefit of any person other than

  2  the decedent's probate estate.

  3         (c)  This subsection does not apply to any property if

  4  the decedent's only interests in the property are that:

  5         1.  The property could be distributed to or for the

  6  benefit of the decedent only with the consent of all persons

  7  having a beneficial interest in the property; or

  8         2.  The income or principal of the property could be

  9  distributed to or for the benefit of the decedent only through

10  the exercise or in default of an exercise of a general power

11  of appointment held by any person other than the decedent; or

12         3.  The income or principal of the property is or could

13  be distributed in satisfaction of the decedent's obligation of

14  support; or

15         4.  The decedent had a contingent right to receive

16  principal, other than at the discretion of any person, which

17  contingency was beyond the control of the decedent and which

18  had not in fact occurred at the decedent's death.

19         (6)  The decedent's beneficial interest in the net cash

20  surrender value immediately before death of any policy of

21  insurance on the decedent's life.

22         (7)  The value of amounts payable to or for the benefit

23  of any person by reason of surviving the decedent under any

24  public or private pension, retirement, or deferred

25  compensation plan, or any similar arrangement, other than

26  benefits payable under the federal Railroad Retirement Act or

27  the federal Social Security System. In the case of a defined

28  contribution plan as defined in s. 414(i) of the Internal

29  Revenue Code of 1986, as amended, this subsection shall not

30  apply to the excess of the proceeds of any insurance policy on

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  1  the decedent's life over the net cash surrender value of the

  2  policy immediately before the decedent's death.

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

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

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

  6  following types:

  7         (a)  Any property transferred as a result of the

  8  termination of a right or interest in, or power over, property

  9  that would have been included in the elective estate under

10  subsection (4) or subsection (5) if the right, interest, or

11  power had not terminated until the decedent's death.

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

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

14  benefit of any person, except:

15         1.  Any transfer of property for medical or educational

16  expenses to the extent it qualifies for exclusion from the

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

18  Revenue Code, as amended; and

19         2.  After the application of paragraph (b)1., the first

20  $10,000 of property transferred to or for the benefit of each

21  donee during the 1-year period, but only to the extent the

22  transfer qualifies for exclusion from the United States gift

23  tax under s. 2503(b) or s. 2503(c) of the Internal Revenue

24  Code, as amended.

25         (c)  Except as provided in paragraph (d), for purposes

26  of this subsection:

27         1.  A "termination" with respect to a right or interest

28  in property occurs when the decedent transfers or relinquishes

29  the right or interest, and, with respect to a power over

30  property, a termination occurs when the power terminates by

31  exercise, release, lapse, default, or otherwise.


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  1         2.  A distribution from a trust the income or principal

  2  of which is subject to subsection (4), subsection (5), or

  3  subsection (9) shall be treated as a transfer of property by

  4  the decedent and not as a termination of a right or interest

  5  in, or a power over, property.

  6         (d)  Notwithstanding anything in paragraph (c) to the

  7  contrary:

  8         1.  A "termination" with respect to a right or interest

  9  in property does not occur when the right or interest

10  terminates by the terms of the governing instrument unless the

11  termination is determined by reference to the death of the

12  decedent and the court finds a principal purpose for the terms

13  of the instrument relating to the termination was avoidance of

14  the elective share.

15         2.  A distribution from a trust is not subject to this

16  subsection if the distribution is required by the terms of the

17  governing instrument unless the event triggering the

18  distribution is determined by reference to the death of the

19  decedent and the court finds that a principal purpose of the

20  terms of the governing instrument relating to the distribution

21  is avoidance of the elective share.

22         (9)  Property transferred in satisfaction of the

23  elective share.

24         Section 4.  Section 732.2045, Florida Statutes, is

25  created to read:

26         732.2045  Exclusions and overlapping application.--

27         (1)  EXCLUSIONS.--Section 732.2035 does not apply to:

28         (a)  Except as provided in s. 732.215(4), any transfer

29  of property by the decedent to the extent the transfer is

30  irrevocable before the effective date of this subsection or

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  1  after that date but before the date of the decedent's marriage

  2  to the surviving spouse.

  3         (b)  Any transfer of property by the decedent to the

  4  extent the decedent received adequate consideration in money

  5  or money's worth for the transfer.

  6         (c)  Any transfer of property by the decedent made with

  7  the written consent of the decedent's spouse. For this

  8  purpose, spousal consent to split-gift treatment under the

  9  United States gift tax laws does not constitute written

10  consent to the transfer by the decedent.

11         (d)  The proceeds of any policy of insurance on the

12  decedent's life in excess of the net cash surrender value of

13  the policy whether payable to the decedent's estate, a trust,

14  or in any other manner.

15         (e)  Any policy of insurance on the decedent's life

16  maintained pursuant to a court order.

17         (f)  The decedent's one-half of the property to which

18  ss. 732.216-732.228 apply and real property that is community

19  property under the laws of the jurisdiction where it is

20  located.

21         (g)  Property held in a qualifying special needs trust

22  on the date of the decedent's death.

23         (h)  Property included in the gross estate of the

24  decedent for federal estate tax purposes solely because the

25  decedent possessed a general power of appointment.

26         (2)  OVERLAPPING APPLICATION.--If s. 732.2035(1) and

27  any other subsection of s. 732.2035 apply to the same property

28  interest, the amount included in the elective estate under

29  other subsections is reduced by the amount included under

30  subsection (1). In all other cases, if more than one

31  subsection of s. 732.2035 applies to a property interest, only


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  1  the subsection resulting in the largest elective estate shall

  2  apply.

  3         Section 5.  Section 732.205, Florida Statutes, is

  4  amended to read:

  5         (Substantial rewording of section.  See

  6         s. 732.205, F.S., for present text.)

  7         732.205  Valuation of the elective estate.--For

  8  purposes of s. 732.2035, "value" means:

  9         (1)  In the case of any policy of insurance on the

10  decedent's life includable under s. 732.2035(4), (5), or (6),

11  the net cash surrender value of the policy immediately before

12  the decedent's death.

13         (2)  In the case of any policy of insurance on the

14  decedent's life includable under s. 732.2035(8), the net cash

15  surrender value of the policy on the date of the termination

16  or transfer.

17         (3)  In the case of amounts includable under s.

18  732.2035(7), the transfer tax value of the amounts on the date

19  of the decedent's death.

20         (4)  In the case of other property included under s.

21  732.2035(8), the fair market value of the property on the date

22  of the termination or transfer, computed after deducting any

23  mortgages, liens, or security interests on the property as of

24  that date.

25         (5)  In the case of all other property, the fair market

26  value of the property on the date of the decedent's death,

27  computed after deducting from the total value of the property:

28         (a)  All claims, other than claims for funeral

29  expenses, paid or payable from the elective estate; and

30

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  1         (b)  To the extent they are not deducted under

  2  paragraph (a), all mortgages, liens, or security interests on

  3  the property.

  4         Section 6.  Section 732.206, Florida Statutes, is

  5  amended to read:

  6         (Substantial rewording of section.  See

  7         s. 732.206, F.S., for present text.)

  8         732.206  Elective share amount.--The elective share is

  9  an amount equal to 30 percent of the elective estate.

10         Section 7.  Section 732.207, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section.  See

13         s. 732.207, F.S., for present text.)

14         732.207  Sources from which elective share payable;

15  abatement.--

16         (1)  Unless otherwise provided in the decedent's will

17  or, in the absence of a provision in the decedent's will, in a

18  trust referred to in the decedent's will, the following are

19  applied first to satisfy the elective share:

20         (a)  To the extent paid to or for the benefit of the

21  surviving spouse, the proceeds of any term or other policy of

22  insurance on the decedent's life if, at the time of decedent's

23  death, the policy was owned by any person other than the

24  surviving spouse.

25         (b)  To the extent paid to or for the benefit of the

26  surviving spouse, amounts payable under any plan or

27  arrangement described in s. 732.2035(7).

28         (c)  To the extent paid to or for the benefit of the

29  surviving spouse, the decedent's one-half of any property

30  described in s. 732.2045(1)(f).

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  1         (d)  Property held for the benefit of the surviving

  2  spouse in a qualifying special needs trust.

  3         (e)  Property interests included in the elective estate

  4  that pass or have passed to or for the benefit of the

  5  surviving spouse.

  6         (f)  Property interests that would have satisfied the

  7  elective share under any preceding paragraph of this

  8  subsection but were disclaimed.

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

10  elective share is not fully satisfied, the unsatisfied balance

11  shall be apportioned among the direct recipients of the

12  remaining elective estate in the following order of priority:

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

14  revocable trusts.

15         (b)  Class 2.--Recipients of property interests

16  included in the elective estate under s. 732.2035(2), (3), or

17  (6) and, to the extent the decedent had at the time of death

18  the power to designate the recipient of the property, property

19  interests included under s. 732.2035(5) and (7).

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

21  interests included in the elective estate except interests for

22  which a charitable deduction with respect to the transfer of

23  the property was allowed or allowable to the decedent or the

24  decedent's spouse under the United States gift tax laws.

25         (3)  The contribution required of the decedent's

26  probate estate and revocable trusts may be made in cash or in

27  kind. In the application of this subsection, subsections (4)

28  and (5) are to be applied to charge contribution for the

29  elective share to the beneficiaries of the probate estate and

30  revocable trusts as if all beneficiaries were taking under a

31  common governing instrument.


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  1         (4)  Unless otherwise provided in the decedent's will

  2  or, in the absence of a provision in the decedent's will, in a

  3  trust referred to in the decedent's will, any amount to be

  4  satisfied from the decedent's probate estate, other than from

  5  property passing to an inter vivos trust, shall be paid from

  6  the assets of the probate estate in the order prescribed in s.

  7  733.805.

  8         (5)  Unless otherwise provided in the trust instrument

  9  or, in the decedent's will if there is no provision in the

10  trust instrument, any amount to be satisfied from trust

11  property shall be paid from the assets of the trust in the

12  order provided for claims under s. 737.3054(2) and (3). A

13  direction in the decedent's will is effective only for

14  revocable trusts.

15         Section 8.  Section 732.208, Florida Statutes, is

16  amended to read:

17         (Substantial rewording of section.  See

18         s. 732.208, F.S., for present text.)

19         732.208  Liability of direct recipients and

20  beneficiaries.--

21         (1)  Only direct recipients of property included in the

22  elective estate and the beneficiaries of the decedent's

23  probate estate or of any trust that is a direct recipient, are

24  liable to contribute toward satisfaction of the elective

25  share.

26         (a)  Within each of the classes described in s.

27  732.207(2)(b) and (c), each direct recipient is liable in an

28  amount equal to the value, as determined under s. 732.205, of

29  the proportional part of the liability for all members of the

30  class.

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  1         (b)  Trust and probate estate beneficiaries who receive

  2  a distribution of principal after the decedent's death are

  3  liable in an amount equal to the value of the principal

  4  distributed to them multiplied by the contribution percentage

  5  of the distributing trust or estate. For this purpose,

  6  "contribution percentage" means the remaining unsatisfied

  7  balance of the trust or estate at the time of the distribution

  8  divided by the value of the trust or estate as determined

  9  under s. 732.205. "Remaining unsatisfied balance" means the

10  amount of liability initially apportioned to the trust or

11  estate reduced by amounts or property previously contributed

12  by any person in satisfaction of that liability.

13         (2)  In lieu of paying the amount for which they are

14  liable, beneficiaries who have received a distribution of

15  property included in the elective estate and direct recipients

16  other than the decedent's probate estate or revocable trusts,

17  may:

18         (a)  Contribute a proportional part of all property

19  received; or

20         (b)  With respect to any property interest received

21  before the date of the court's order of contribution:

22         1.  Contribute all of the property; or

23         2.  If the property has been sold or exchanged prior to

24  the date on which the spouse's election is filed, pay an

25  amount equal to the value of the property, less reasonable

26  costs of sale, on the date it was sold or exchanged.

27

28  In the application of paragraph (a), the "proportional part of

29  all property received" is determined separately for each class

30  of priority under s. 732.207(2).

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  1         (3)  If a person pays the value of the property on the

  2  date of a sale or exchange or contributes all of the property

  3  received, as provided in paragraph (2)(b):

  4         (a)  No further contribution toward satisfaction of the

  5  elective share shall be required with respect to such

  6  property.

  7         (b)  Any unsatisfied contribution is treated as

  8  additional unsatisfied balance and reapportioned to other

  9  recipients as provided in s. 732.207 and this section.

10         (4)  If any part of s. 732.2035 or s. 732.207 is

11  preempted by federal law with respect to a payment, an item of

12  property, or any other benefit included in the elective

13  estate, a person who, not for value, receives the payment,

14  item of property, or any other benefit is obligated to return

15  the payment, item of property, or benefit, or is personally

16  liable for the amount of the payment or the value of that item

17  of property or benefit, as provided in s. 732.2035 and s.

18  732.207, to the person who would have been entitled to it were

19  that section or part of that section not preempted.

20         Section 9.  Section 732.209, Florida Statutes, is

21  amended to read:

22         (Substantial rewording of section.  See

23         s. 732.209, F.S., for present text.)

24         732.209  Valuation of property used to satisfy elective

25  share.--

26         (1)  DEFINITIONS.--As used in this section, the term:

27         (a)  "Applicable valuation date" means:

28         1.  In the case of transfers in satisfaction of the

29  elective share, the date of the decedent's death.

30

31


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  1         2.  In the case of property held in a qualifying

  2  special needs trust on the date of the decedent's death, the

  3  date of the decedent's death.

  4         3.  In the case of other property irrevocably

  5  transferred to or for the benefit of the surviving spouse

  6  during the decedent's life, the date of the transfer.

  7         4.  In the case of property distributed to the

  8  surviving spouse by the personal representative, the date of

  9  distribution.

10         5.  Except as provided in subparagraphs 1., 2., and 3.,

11  in the case of property passing in trust for the surviving

12  spouse, the date or dates the trust is funded in satisfaction

13  of the elective share.

14         6.  In the case of property described in s. 732.2035(3)

15  or (4), the date of the decedent's death.

16         7.  In the case of proceeds of any policy of insurance

17  payable to the surviving spouse, the date of the decedent's

18  death.

19         8.  In the case of amounts payable to the surviving

20  spouse under any plan or arrangement described in s.

21  732.2035(7), the date of the decedent's death.

22         9.  In all other cases, the date of the decedent's

23  death or the date the surviving spouse first comes into

24  possession of the property, whichever occurs later.

25         (b)  "Qualifying power of appointment" means a general

26  power of appointment that is exercisable alone and in all

27  events by the decedent's spouse in favor of the spouse or the

28  spouse's estate. For this purpose, a general power to appoint

29  by will is a qualifying power of appointment if the power may

30  be exercised by the spouse in favor of the spouse's estate

31  without the consent of any other person.


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  1         (c)  "Qualifying invasion power" means a power held by

  2  the surviving spouse or the trustee of an elective share trust

  3  to invade trust principal for the health, support, and

  4  maintenance of the spouse. The power may, but need not,

  5  provide that the other resources of the spouse are to be taken

  6  into account in any exercise of the power.

  7         (2)  Except as provided in this subsection, the value

  8  of property for purposes of s. 732.207 is the fair market

  9  value of the property on the applicable valuation date.

10         (a)  If the surviving spouse has a life interest in

11  property not in trust that entitles the spouse to the use of

12  the property for life, the value of the spouse's interest is

13  one-half of the value of the property on the applicable

14  valuation date.

15         (b)  If the surviving spouse has an interest in a

16  trust, or portion of a trust, that meets the requirements of

17  an elective share trust, the value of the spouse's interest is

18  a percentage of the value of the principal of the trust, or

19  trust portion, on the applicable valuation date as follows:

20         1.  One hundred percent if the trust instrument

21  includes both a qualifying invasion power and a qualifying

22  power of appointment.

23         2.  Eighty percent if the trust instrument includes a

24  qualifying invasion power but no qualifying power of

25  appointment.

26         3.  Fifty percent in all other cases.

27         (c)  If the surviving spouse is a beneficiary of a

28  trust, or portion of a trust, that meets the requirements of a

29  qualifying special needs trust, the value of the principal of

30  the trust, or trust portion, on the applicable valuation date.

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  1         (d)  If the surviving spouse has an interest in a trust

  2  that does not meet the requirements of an elective share

  3  trust, the value of the spouse's interest is the transfer tax

  4  value of the interest on the applicable valuation date;

  5  provided, the aggregate value of all of the spouse's interests

  6  in the trust shall not exceed one-half of the value of the

  7  trust principal on the applicable valuation date.

  8         (e)  In the case of any policy of insurance on the

  9  decedent's life the proceeds of which are payable outright or

10  to a trust described in paragraph (b), paragraph (c), or

11  paragraph (d), the value of the policy for purposes of s.

12  732.207 and paragraphs (b), (c), and (d) is the net proceeds.

13         (f)  In the case of a right to one or more payments

14  from an annuity or under a similar contractual arrangement or

15  under any plan or arrangement described in s. 732.2035(7), the

16  value of the right to payments for purposes of s. 732.207 and

17  paragraphs (b), (c), and (d) is the transfer tax value of the

18  right on the applicable valuation date.

19         Section 10.  Section 732.210, Florida Statutes, is

20  amended to read:

21         (Substantial rewording of section.  See

22         s. 732.210, F.S., for present text.)

23         732.210  Effect of election on other interests.--

24         (1)  The elective share is in addition to homestead,

25  exempt property and allowances as provided in part IV.

26         (2)  If an election is filed, the balance of the

27  elective estate, after the application of s. 732.214(1), shall

28  be administered as though the surviving spouse had predeceased

29  the decedent.

30         Section 11.  Section 732.211, Florida Statutes, is

31  amended to read:


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  1         (Substantial rewording of section.  See

  2         s. 732.211, F.S., for present text.)

  3         732.211  Protection of payors and other third

  4  parties.--Although a property interest is included in the

  5  decedent's elective estate under s. 732.2035(2)-(8), a payor

  6  or other third party is not liable for paying, distributing,

  7  or transferring the property to a beneficiary designated in a

  8  governing instrument, or for taking any other action in good

  9  faith reliance on the validity of a governing instrument.

10         Section 12.  Section 732.212, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section.  See

13         s. 732.212, F.S., for present text.)

14         732.212  Right of election; by whom exercisable.--The

15  right of election may be exercised:

16         (1)  By the surviving spouse.

17         (2)  With approval of the court having jurisdiction of

18  the probate proceeding, by an attorney in fact or guardian of

19  the property of the surviving spouse. The court shall

20  determine the election as the best interests of the surviving

21  spouse, during the spouse's probable lifetime, require.

22         Section 13.  Section 732.213, Florida Statutes, is

23  amended to read:

24         (Substantial rewording of section.  See

25         s. 732.213, F.S., for present text.)

26         732.213  Time of election; extensions; withdrawal.--

27         (1)  Except as provided in subsection (2), the election

28  must be filed within the earlier of 6 months of the date of

29  the first publication of notice of administration or 2 years

30  after the date of the decedent's death.

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  1         (2)  Within the period provided in subsection (1), the

  2  surviving spouse or an attorney in fact or guardian of the

  3  property of the surviving spouse may petition the court for an

  4  extension of time for making an election. After notice and

  5  hearing, the court for good cause shown may extend the time

  6  for election. If the court grants the petition for an

  7  extension, the election must be filed within the time allowed

  8  by the extension.

  9         (3)  The surviving spouse or an attorney in fact,

10  guardian of the property, or personal representative of the

11  surviving spouse may withdraw an election at any time within 8

12  months of the decedent's death and before the court's order of

13  contribution. If an election is withdrawn, the court may

14  assess attorney's fees and costs against the surviving spouse

15  or the spouse's estate.

16         (4)  A petition for an extension of the time for making

17  the election or for approval to make the election shall toll

18  the time for making the election.

19         Section 14.  Section 732.214, Florida Statutes, is

20  amended to read:

21         (Substantial rewording of section.  See

22         s. 732.214, F.S., for present text.)

23         732.214  Order of contribution; personal

24  representative's duty to collect contribution.--

25         (1)  The court shall determine the elective share and

26  shall order contribution. All contributions are to bear

27  interest at the statutory rate provided in s. 55.03(1)

28  beginning 90 days from the date of the order. The order of

29  contribution is prima facie correct in proceedings in any

30  court or jurisdiction.

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  1         (2)  Except as provided in subsection (3), the personal

  2  representative shall collect contribution from the recipients

  3  of the elective estate as provided in the court's order of

  4  contribution.

  5         (a)  If property within the possession or control of

  6  the personal representative is distributable to a beneficiary

  7  or trustee who is required to contribute in satisfaction of

  8  the elective share, the personal representative shall withhold

  9  from the distribution the contribution required of the

10  beneficiary or trustee.

11         (b)  If, after the order of contribution, the personal

12  representative brings an action to collect contribution from

13  property not within the personal representative's control, the

14  judgment shall include the personal representative's costs and

15  reasonable attorney's fees. The personal representative is not

16  required to seek collection of any portion of the elective

17  share from property not within the personal representative's

18  control until after the entry of the order of contribution.

19         (3)  A personal representative who has the duty under

20  this section of enforcing contribution, may be relieved of

21  that duty by an order of the court finding that it is

22  impracticable to enforce contribution in view of the

23  improbability of obtaining a judgment or the improbability of

24  collection under any judgment that might be obtained, or

25  otherwise. The personal representative shall not be liable for

26  failure to attempt collection if the attempt would have been

27  economically impracticable.

28         (4)  Nothing in this section limits the independent

29  right of the surviving spouse to collect the elective share as

30  provided in the order of contribution and that right is hereby

31  conferred. If the surviving spouse brings an action to enforce


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  1  an order of contribution, the judgment shall include the

  2  surviving spouse's costs and reasonable attorney's fees.

  3         Section 15.  Section 732.215, Florida Statutes, is

  4  amended to read:

  5         (Substantial rewording of section.  See

  6         s. 732.215, F.S., for present text.)

  7         732.215  Effective date; effect of prior waivers;

  8  transition rules.--

  9         (1)  Sections 732.201-732.215 are effective on October

10  1, 1999, for all decedents dying on or after October 1, 2001.

11  The law in effect prior to October 1, 1999, applies to

12  decedents dying before October 1, 2001.

13         (2)  Nothing in ss. 732.201-732.215 modifies or applies

14  to the rights of spouses under chapter 61.

15         (3)  A waiver of elective share rights before the

16  effective date of this section which is otherwise in

17  compliance with the requirements of s. 732.702 is a waiver of

18  all rights under ss. 732.201-732.214.

19         (4)  Notwithstanding anything in s. 732.2045(1)(a) to

20  the contrary, any trust created by the decedent before the

21  effective date of this section that meets the requirements of

22  an elective share trust, is treated as if the decedent created

23  the trust after the effective date of this subsection and in

24  satisfaction of the elective share.

25         (5)  This act does not affect any interest in contracts

26  entered into for adequate consideration in money or moneys

27  worth before October 1, 1999, to the extent that the contract

28  was irrevocable at all times from October 1, 1999, until the

29  date of decedent's death.

30         Section 16.  This act shall take effect October 1,

31  1999.


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