House Bill 0301er

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





    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1

  2         An act relating to probate; amending s.

  3         732.201, F.S.; revising provisions governing

  4         the right to elective share; creating s.

  5         732.2025, F.S.; providing definitions;

  6         transferring, renumbering, and amending s.

  7         732.206, F.S.; providing for property entering

  8         into the elective estate; creating s. 732.2045,

  9         F.S.; providing for exclusions and overlapping

10         application; creating s. 732.2055, F.S.;

11         providing for the valuation of the elective

12         estate; transferring, renumbering, and amending

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

14         share amount; transferring, renumbering, and

15         amending s. 732.209, F.S.; providing for the

16         sources from which the elective share is

17         payable; providing for abatement; creating s.

18         732.2085, F.S.; providing for the liability of

19         direct recipients and beneficiaries; creating

20         s. 732.2095, F.S.; providing for the valuation

21         of the property used to satisfy the elective

22         share; transferring, renumbering, and amending

23         s. 732.208, F.S.; providing for the effect of

24         the election on other interests; creating s.

25         732.2115, F.S.; providing for the protection of

26         payors and other third parties; transferring,

27         renumbering, and amending s. 732.210, F.S.;

28         providing who may exercise the right of

29         election; transferring, renumbering, and

30         amending  s. 732.212, F.S.; providing for the

31         time of election; providing for extensions and


                                  1

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         for withdrawal; creating s. 732.2145, F.S.;

  2         providing for the order of contribution;

  3         providing for the personal representative's

  4         duty to collect contributions; creating s.

  5         732.2155, F.S.; providing for the effective

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

  7         effect of prior waivers, and transition rules;

  8         repealing s. 732.205, F.S., which provides

  9         elective share solely for Florida resident

10         decedent; repealing s. 732.211, F.S., which

11         provides for the effect of the exercise of the

12         right of election; repealing s. 732.213, F.S.,

13         which provides for preexisting right to dower;

14         repealing s. 732.214, F.S., which provides for

15         proceedings on election; repealing s. 732.215,

16         F.S., which provides for the effect of elective

17         share on taxes; providing an effective date.

18

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

20

21         Section 1.  Section 732.201, Florida Statutes, is

22  amended to read:

23         732.201  Right to elective share.--The surviving spouse

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

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

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

27  elective share.

28         Section 2.  Section 732.2025, Florida Statutes, is

29  created to read:

30         732.2025  Definitions.--As used in sections

31  732.2025-732.2155, the term:


                                  2

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  estate and any other person who receives property included in

  3  the elective estate by transfer from the decedent, including

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

  5  survivorship, or by beneficiary designation under a governing

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

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

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

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

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

11  trustee but excludes the beneficiaries of the trust.

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

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

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

15  as often as annually;

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

17  738.12 or the surviving spouse has the right under the terms

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

19  make the property productive or to convert it within a

20  reasonable time; and

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

22  spouse has the power to distribute income or principal to

23  anyone other than the spouse.

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

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

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

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

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

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

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

31


                                  3

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  maintenance.

  3         (4)  "Governing instrument" means a deed; will; trust;

  4  insurance or annuity policy; account with payable-on-death

  5  designation; security registered in beneficiary form (TOD);

  6  pension, profit-sharing, retirement, or similar benefit plan;

  7  an instrument creating or exercising a power of appointment or

  8  a power of attorney; or a dispositive, appointive, or

  9  nominative instrument of any similar type.

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

11  employer, government, governmental agency or subdivision, or

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

13  representative or a trustee of a trust created by the

14  decedent, authorized or obligated by law or a governing

15  instrument to make payments.

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

17  partnership, association, company, or corporation.

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

19  located that is subject to estate administration in any state

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

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

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

23  surviving spouse with court approval before or after a

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

25  commencing on the decedent's death:

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

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

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

29  family trustees.  For purposes of this paragraph, ineligible

30  family trustees include the decedent's grandparents and any

31


                                  4

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  descendants of the surviving spouse; and

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

  4  spouse has the power to distribute income or principal to

  5  anyone other than the spouse.

  6         (c)  The requirement for court approval and the

  7  limitation on ineligible family trustees shall not apply if

  8  the aggregate of the trust property as of the applicable

  9  valuation date in a qualifying special needs trust is less

10  than $100,000.

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

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

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

14  means an irrevocable transfer by the decedent to an elective

15  share trust.

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

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

18  tax laws if it passed without consideration to an unrelated

19  person on the applicable valuation date.

20         Section 3.  Section 732.206, Florida Statutes, is

21  transferred, renumbered as section 732.2035, Florida Statutes,

22  and amended to read:

23         (Substantial rewording of section. See

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

25         732.2035  Property entering into elective

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

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

28  s. 732.2055 of the following property interests:

29         (1)  The decedent's probate estate.

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

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


                                  5

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

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

  3  that portion of the accounts or securities which the decedent

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

  5  without the duty to account to any person.

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

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

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

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

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

11  of the property divided by the number of tenants.

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

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

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

15  transfer was revocable by the decedent alone or in conjunction

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

17  transfer that is revocable by the decedent only with the

18  consent of all persons having a beneficial interest in the

19  property.

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

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

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

23  time of the decedent's death:

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

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

26  the property; or

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

28  discretion of any person other than the spouse of the

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

30  the decedent.

31


                                  6

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  from an annuity or under a similar contractual arrangement

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

  4  the property necessary to equal the annuity or other

  5  contractual payment.

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

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

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

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

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

11  estate; and

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

13  the portion subject to the discretion, to the extent the

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

15  the decedent's probate estate.

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

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

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

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

20  having a beneficial interest in the property; or

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

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

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

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

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

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

27  support; or

28         4.  The decedent had a contingent right to receive

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

30  contingency was beyond the control of the decedent and which

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


                                  7

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  surrender value immediately before death of any policy of

  3  insurance on the decedent's life.

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

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

  6  public or private pension, retirement, or deferred

  7  compensation plan, or any similar arrangement, other than

  8  benefits payable under the federal Railroad Retirement Act or

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

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

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

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

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

14  policy immediately before the decedent's death.

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

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

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

18  following types:

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

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

21  that would have been included in the elective estate under

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

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

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

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

26  benefit of any person, except:

27         1.  Any transfer of property for medical or educational

28  expenses to the extent it qualifies for exclusion from the

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

30  Revenue Code, as amended; and

31


                                  8

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  $10,000 of property transferred to or for the benefit of each

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

  4  transfer qualifies for exclusion from the United States gift

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

  6  Code, as amended.

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

  8  of this subsection:

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

10  in property occurs when the decedent transfers or relinquishes

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

12  property, a termination occurs when the power terminates by

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

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

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

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

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

18  in, or a power over, property.

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

20  contrary:

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

22  in property does not occur when the right or interest

23  terminates by the terms of the governing instrument unless the

24  termination is determined by reference to the death of the

25  decedent and the court finds that a principal purpose for the

26  terms of the instrument relating to the termination was

27  avoidance of the elective share.

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

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

30  governing instrument unless the event triggering the

31  distribution is determined by reference to the death of the


                                  9

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  terms of the governing instrument relating to the distribution

  3  is avoidance of the elective share.

  4         (9)  Property transferred in satisfaction of the

  5  elective share.

  6         Section 4.  Section 732.2045, Florida Statutes, is

  7  created to read:

  8         732.2045  Exclusions and overlapping application.--

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

10         (a)  Except as provided in s. 732.2155(4), any transfer

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

12  irrevocable before the effective date of this subsection or

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

14  to the surviving spouse.

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

16  extent the decedent received adequate consideration in money

17  or money's worth for the transfer.

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

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

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

21  United States gift tax laws does not constitute written

22  consent to the transfer by the decedent.

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

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

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

26  or in any other manner.

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

28  maintained pursuant to a court order.

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

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

31


                                  10

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1  property under the laws of the jurisdiction where it is

  2  located.

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

  4  on the date of the decedent's death.

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

  6  decedent for federal estate tax purposes solely because the

  7  decedent possessed a general power of appointment.

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

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

10  interest, the amount included in the elective estate under

11  other subsections is reduced by the amount included under

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

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

14  the subsection resulting in the largest elective estate shall

15  apply.

16         Section 5.  Section 732.2055, Florida Statutes, is

17  created to read:

18         732.2055  Valuation of the elective estate.--For

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

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

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

22  the net cash surrender value of the policy immediately before

23  the decedent's death.

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

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

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

27  or transfer.

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

29  732.2035(7), the transfer tax value of the amounts on the date

30  of the decedent's death.

31


                                  11

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  732.2035(8), the fair-market value of the property on the date

  3  of the termination or transfer, computed after deducting any

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

  5  that date.

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

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

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

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

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

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

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

13  the property.

14         Section 6.  Section 732.207, Florida Statutes, is

15  transferred, renumbered as section 732.2065, Florida Statutes,

16  and amended to read:

17         732.2065 732.207  Amount of the elective share.--The

18  elective share is shall consist of an amount equal to 30

19  percent of the elective estate. fair market value, on the date

20  of death, of all assets referred to in s. 732.206, computed

21  after deducting from the total value of the assets:

22         (1)  All valid claims against the estate paid or

23  payable from the estate; and

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

25  assets.

26         Section 7.  Section 732.209, Florida Statutes, is

27  transferred, renumbered as section 732.2075, Florida Statutes,

28  and amended to read:

29         (Substantial rewording of section.  See

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

31


                                  12

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         732.2075  Sources from which elective share payable;

  2  abatement.--

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

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

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

  6  applied first to satisfy the elective share:

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

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

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

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

11  surviving spouse.

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

13  surviving spouse, amounts payable under any plan or

14  arrangement described in s. 732.2035(7).

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

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

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

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

19  spouse in a qualifying special needs trust.

20         (e)  Property interests included in the elective estate

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

22  surviving spouse.

23         (f)  Property interests that would have satisfied the

24  elective share under any preceding paragraph of this

25  subsection but were disclaimed.

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

27  elective share is not fully satisfied, the unsatisfied balance

28  shall be apportioned among the direct recipients of the

29  remaining elective estate in the following order of priority:

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

31  revocable trusts.


                                  13

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

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

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

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

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

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

  7  interests included in the elective estate except interests for

  8  which a charitable deduction with respect to the transfer of

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

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

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

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

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

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

15  elective share to the beneficiaries of the probate estate and

16  revocable trusts as if all beneficiaries were taking under a

17  common governing instrument.

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

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

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

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

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

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

24  733.805.

25         (5)  Unless otherwise provided in the trust instrument

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

27  trust instrument, any amount to be satisfied from trust

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

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

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

31  revocable trusts.


                                  14

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         Section 8.  Section 732.2085, Florida Statutes, is

  2  created to read:

  3         732.2085  Liability of direct recipients and

  4  beneficiaries.--

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

  6  elective estate and the beneficiaries of the decedent's

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

  8  liable to contribute toward satisfaction of the elective

  9  share.

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

11  732.2075(2)(b) and (c), each direct recipient is liable in an

12  amount equal to the value, as determined under s. 732.2055, of

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

14  class.

15         (b)  Trust and probate estate beneficiaries who receive

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

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

18  distributed to them multiplied by the contribution percentage

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

20  "contribution percentage" means the remaining unsatisfied

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

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

23  under s. 732.2055. "Remaining unsatisfied balance" means the

24  amount of liability initially apportioned to the trust or

25  estate reduced by amounts or property previously contributed

26  by any person in satisfaction of that liability.

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

28  liable, beneficiaries who have received a distribution of

29  property included in the elective estate and direct recipients

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

31  may:


                                  15

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         (a)  Contribute a proportional part of all property

  2  received; or

  3         (b)  With respect to any property interest received

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

  5         1.  Contribute all of the property; or

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

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

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

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

10

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

12  all property received" is determined separately for each class

13  of priority under s. 732.2075(2).

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

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

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

17         (a)  No further contribution toward satisfaction of the

18  elective share shall be required with respect to such

19  property.

20         (b)  Any unsatisfied contribution is treated as

21  additional unsatisfied balance and reapportioned to other

22  recipients as provided in s. 732.2075 and this section.

23         (4)  If any part of s. 732.2035 or s. 732.2075 is

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

25  property, or any other benefit included in the elective

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

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

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

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

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

31


                                  16

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1  732.2075, to the person who would have been entitled to it

  2  were that section or part of that section not preempted.

  3         Section 9.  Section 732.2095, Florida Statutes, is

  4  created to read:

  5         732.2095  Valuation of property used to satisfy

  6  elective share.--

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

  8         (a)  "Applicable valuation date" means:

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

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

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

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

13  date of the decedent's death.

14         3.  In the case of other property irrevocably

15  transferred to or for the benefit of the surviving spouse

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

17         4.  In the case of property distributed to the

18  surviving spouse by the personal representative, the date of

19  distribution.

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

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

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

23  of the elective share.

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

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

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

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

28  death.

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

30  spouse under any plan or arrangement described in s.

31  732.2035(7), the date of the decedent's death.


                                  17

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  death or the date the surviving spouse first comes into

  3  possession of the property, whichever occurs later.

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

  5  power of appointment that is exercisable alone and in all

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

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

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

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

10  without the consent of any other person.

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

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

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

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

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

16  into account in any exercise of the power.

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

18  of property for purposes of s. 732.2075 is the fair market

19  value of the property on the applicable valuation date.

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

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

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

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

24  valuation date.

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

26  trust, or portion of a trust, which meets the requirements of

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

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

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

30

31


                                  18

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         1.  One hundred percent if the trust instrument

  2  includes both a qualifying invasion power and a qualifying

  3  power of appointment.

  4         2.  Eighty percent if the trust instrument includes a

  5  qualifying invasion power but no qualifying power of

  6  appointment.

  7         3.  Fifty percent in all other cases.

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

  9  trust, or portion of a trust, which meets the requirements of

10  a qualifying special needs trust, the value of the principal

11  of the trust, or trust portion, on the applicable valuation

12  date.

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

14  that does not meet the requirements of an elective share

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

16  value of the interest on the applicable valuation date;

17  however, the aggregate value of all of the spouse's interests

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

19  trust principal on the applicable valuation date.

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

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

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

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

24  732.2075 and paragraphs (b), (c), and (d) is the net proceeds.

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

26  from an annuity or under a similar contractual arrangement or

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

28  value of the right to payments for purposes of s. 732.2075 and

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

30  right on the applicable valuation date.

31


                                  19

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         Section 10.  Section 732.208, Florida Statutes, is

  2  transferred, renumbered as section 732.2105, Florida Statutes,

  3  and amended to read:

  4         732.2105 732.208  Effect of election on other interests

  5  Interests in addition to elective share.--

  6         (1)  The elective share shall be in addition to

  7  homestead, exempt property, and allowances as provided in part

  8  IV.

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

10  elective estate, after the application of s. 732.2145(1),

11  shall be administered as though the surviving spouse had

12  predeceased the decedent.

13         Section 11.  Section 732.2115, Florida Statutes, is

14  created to read:

15         732.2115  Protection of payors and other third

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

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

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

19  or transferring the property to a beneficiary designated in a

20  governing instrument, or for taking any other action in

21  good-faith reliance on the validity of a governing instrument.

22         Section 12.  Section 732.210, Florida Statutes, is

23  transferred, renumbered as section 732.2125, Florida Statutes,

24  and amended to read:

25         732.2125 732.210  Right of election; by whom

26  exercisable.--The right of election may be exercised:

27         (1)  By the surviving spouse.

28         (2)  By an attorney in fact or a guardian of the

29  property of the surviving spouse, with approval of. the court

30  having jurisdiction of the probate proceeding. The court shall

31


                                  20

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1  determine the election as the best interests of the surviving

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

  3         Section 13.  Section 732.212, Florida Statutes, is

  4  transferred, renumbered as section 732.2135, Florida Statutes,

  5  and amended to read:

  6         (Substantial rewording of section.  See

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

  8         732.2135  Time of election; extensions; withdrawal.--

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

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

11  the first publication of notice of administration or 2 years

12  after the date of the decedent's death.

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

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

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

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

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

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

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

20  by the extension.

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

22  guardian of the property, or personal representative of the

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

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

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

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

27  or the spouse's estate.

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

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

30  the time for making the election.

31


                                  21

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1         Section 14.  Section 732.2145, Florida Statutes, is

  2  created to read:

  3         732.2145  Order of contribution; personal

  4  representative's duty to collect contribution.--

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

  6  shall order contribution. All contributions are to bear

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

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

  9  contribution is prima facie correct in proceedings in any

10  court or jurisdiction.

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

12  representative shall collect contribution from the recipients

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

14  contribution.

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

16  the personal representative is distributable to a beneficiary

17  or trustee who is required to contribute in satisfaction of

18  the elective share, the personal representative shall withhold

19  from the distribution the contribution required of the

20  beneficiary or trustee.

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

22  representative brings an action to collect contribution from

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

24  judgment shall include the personal representative's costs and

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

26  required to seek collection of any portion of the elective

27  share from property not within the personal representative's

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

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

30  this section of enforcing contribution may be relieved of that

31  duty by an order of the court finding that it is impracticable


                                  22

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



  1  to enforce contribution in view of the improbability of

  2  obtaining a judgment or the improbability of collection under

  3  any judgment that might be obtained, or otherwise. The

  4  personal representative shall not be liable for failure to

  5  attempt collection if the attempt would have been economically

  6  impracticable.

  7         (4)  Nothing in this section limits the independent

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

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

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

11  an order of contribution, the judgment shall include the

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

13         Section 15.  Section 732.2155, Florida Statutes, is

14  created to read:

15         732.2155  Effective date; effect of prior waivers;

16  transition rules.--

17         (1)  Sections 732.201-732.2155 are effective on October

18  1, 1999, for all decedents dying on or after October 1, 2001.

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

20  decedents dying before October 1, 2001.

21         (2)  Nothing in ss. 732.201-732.2155 modifies or

22  applies to the rights of spouses under chapter 61.

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

24  effective date of this section which is otherwise in

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

26  all rights under ss. 732.201-732.2145.

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

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

29  effective date of this section that meets the requirements of

30  an elective share trust is treated as if the decedent created

31


                                  23

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




    ENROLLED

    1999 Legislature                CS/CS/HB 301, Second Engrossed



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

  2  satisfaction of the elective share.

  3         (5)  Sections 732.201-732.2155 do not affect any

  4  interest in contracts entered into for adequate consideration

  5  in money or money's worth before October 1, 1999, to the

  6  extent that the contract was irrevocable at all times from

  7  October 1, 1999, until the date of the decedent's death.

  8         Section 16.  Sections 732.205, 732.211, 732.213,

  9  732.214, and 732.215, Florida Statutes, are repealed.

10         Section 17.  This act shall take effect October 1,

11  1999.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  24