1 | A bill to be entitled |
2 | An act relating to probate; amending s. 222.21, F.S.; |
3 | specifying additional circumstances under which certain |
4 | funds or accounts are not exempt from a surviving spouse's |
5 | claims; amending s. 731.110, F.S.; providing a |
6 | prerequisite to admitting a will to probate or appointing |
7 | a personal representative under certain circumstances; |
8 | amending s. 731.201, F.S.; defining the terms "collateral |
9 | heirs" and "descendant"; creating s. 731.401, F.S.; |
10 | providing for enforceability of will or trust provisions |
11 | requiring arbitration of certain disputes; amending ss. |
12 | 732.102, 732.103, 732.104, 732.108, 732.401, and 732.507, |
13 | F.S.; conforming provisions to new definitions; amending |
14 | s. 732.2025, F.S.; revising the definition of "elective |
15 | share trust"; amending ss. 732.2035 and 732.2075, F.S.; |
16 | revising provisions relating to the elective estate and |
17 | elective share; amending s. 732.4015, F.S.; revising a |
18 | provision prohibiting devise of a homestead; creating s. |
19 | 733.620, F.S.; providing for unenforceability and |
20 | invalidity of certain will provisions exculpating personal |
21 | representatives; amending s. 734.101, F.S.; increasing a |
22 | time period for procedures relating to foreign personal |
23 | representatives; amending s. 895.02, F.S.; correcting a |
24 | cross-reference; providing an effective date. |
25 |
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26 | Be It Enacted by the Legislature of the State of Florida: |
27 |
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28 | Section 1. Paragraph (d) of subsection (2) of section |
29 | 222.21, Florida Statutes, is amended to read: |
30 | 222.21 Exemption of pension money and certain tax-exempt |
31 | funds or accounts from legal processes.-- |
32 | (2) |
33 | (d) Any fund or account described in paragraph (a) is not |
34 | exempt from the claims of an alternate payee under a qualified |
35 | domestic relations order or from the claims of a surviving |
36 | spouse pursuant to an order determining the amount of elective |
37 | share and contribution as provided in part II of chapter 732. |
38 | However, the interest of any alternate payee under a qualified |
39 | domestic relations order is exempt from all claims of any |
40 | creditor, other than the Department of Revenue, of the alternate |
41 | payee. As used in this paragraph, the terms "alternate payee" |
42 | and "qualified domestic relations order" have the meanings |
43 | ascribed to them in s. 414(p) of the Internal Revenue Code of |
44 | 1986. |
45 | Section 2. Subsection (3) is added to section 731.110, |
46 | Florida Statutes, to read: |
47 | 731.110 Caveat; proceedings.-- |
48 | (3) When a caveat has been filed by an interested person |
49 | other than a creditor, the court shall not admit a will of the |
50 | decedent to probate or appoint a personal representative until |
51 | service, as provided by the Florida Probate Rules, has been |
52 | accomplished. |
53 | Section 3. Subsections (6) and (7) and subsections (8) |
54 | through (37) of section 731.201, Florida Statutes, as amended by |
55 | section 29 of chapter 2006-217, Laws of Florida, are renumbered |
56 | as subsections (7) and (8) and subsections (10) through (39), |
57 | respectively, and new subsections (6) and (9) are added to that |
58 | section, to read: |
59 | 731.201 General definitions.--Subject to additional |
60 | definitions in subsequent chapters that are applicable to |
61 | specific chapters or parts, and unless the context otherwise |
62 | requires, in this code, in s. 409.9101, and in chapters 736, |
63 | 738, 739, and 744, the term: |
64 | (6) "Collateral heirs" means heirs who are descendants of |
65 | an ancestor, excluding the decedent's own descendants and |
66 | ancestors. |
67 | (9) "Descendant" means a person in any generational level |
68 | down the applicable individual's descending line and includes |
69 | children, grandchildren, and more remote descendants. The term |
70 | "descendant" is synonymous with the terms "lineal descendant" |
71 | and "issue" but excludes collateral heirs. |
72 | Section 4. Section 731.401, Florida Statutes, is created |
73 | to read: |
74 | 731.401 Arbitration of disputes.-- |
75 | (1) A provision in a will or trust requiring the |
76 | arbitration of disputes, other than disputes of the validity of |
77 | all or a part of a will or trust, between or among the |
78 | beneficiaries and a fiduciary under the will or trust, or any |
79 | combination of such persons or entities, is enforceable. |
80 | (2) Unless otherwise specified in the will or trust, a |
81 | will or trust provision requiring arbitration shall be presumed |
82 | to require binding arbitration under s. 44.104. |
83 | Section 5. Section 732.102, Florida Statutes, is amended |
84 | to read: |
85 | 732.102 Spouse's share of intestate estate.--The intestate |
86 | share of the surviving spouse is: |
87 | (1) If there is no surviving lineal descendant of the |
88 | decedent, the entire intestate estate. |
89 | (2) If there are surviving lineal descendants of the |
90 | decedent, all of whom are also lineal descendants of the |
91 | surviving spouse, the first $60,000 of the intestate estate, |
92 | plus one-half of the balance of the intestate estate. Property |
93 | allocated to the surviving spouse to satisfy the $60,000 shall |
94 | be valued at the fair market value on the date of distribution. |
95 | (3) If there are surviving lineal descendants, one or more |
96 | of whom are not lineal descendants of the surviving spouse, one- |
97 | half of the intestate estate. |
98 | Section 6. Subsections (1), (2), and (6) of section |
99 | 732.103, Florida Statutes, are amended to read: |
100 | 732.103 Share of other heirs.--The part of the intestate |
101 | estate not passing to the surviving spouse under s. 732.102, or |
102 | the entire intestate estate if there is no surviving spouse, |
103 | descends as follows: |
104 | (1) To the lineal descendants of the decedent. |
105 | (2) If there is no lineal descendant, to the decedent's |
106 | father and mother equally, or to the survivor of them. |
107 | (6) If none of the foregoing, and if any of the |
108 | descendants of the decedent's great-grandparents were Holocaust |
109 | victims as defined in s. 626.9543(3)(a), including such victims |
110 | in countries cooperating with the discriminatory policies of |
111 | Nazi Germany, then to the lineal descendants of the great- |
112 | grandparents. The court shall allow any such descendant to meet |
113 | a reasonable, not unduly restrictive, standard of proof to |
114 | substantiate his or her lineage. This subsection only applies to |
115 | escheated property and shall cease to be effective for |
116 | proceedings filed after December 31, 2004. |
117 | Section 7. Section 732.104, Florida Statutes, is amended |
118 | to read: |
119 | 732.104 Inheritance per stirpes.--Descent shall be per |
120 | stirpes, whether to lineal descendants or to collateral heirs. |
121 | Section 8. Section 732.108, Florida Statutes, is amended |
122 | to read: |
123 | 732.108 Adopted persons and persons born out of wedlock.-- |
124 | (1) For the purpose of intestate succession by or from an |
125 | adopted person, the adopted person is a lineal descendant of the |
126 | adopting parent and is one of the natural kindred of all members |
127 | of the adopting parent's family, and is not a lineal descendant |
128 | of his or her natural parents, nor is he or she one of the |
129 | kindred of any member of the natural parent's family or any |
130 | prior adoptive parent's family, except that: |
131 | (a) Adoption of a child by the spouse of a natural parent |
132 | has no effect on the relationship between the child and the |
133 | natural parent or the natural parent's family. |
134 | (b) Adoption of a child by a natural parent's spouse who |
135 | married the natural parent after the death of the other natural |
136 | parent has no effect on the relationship between the child and |
137 | the family of the deceased natural parent. |
138 | (c) Adoption of a child by a close relative, as defined in |
139 | s. 63.172(2), has no effect on the relationship between the |
140 | child and the families of the deceased natural parents. |
141 | (2) For the purpose of intestate succession in cases not |
142 | covered by subsection (1), a person born out of wedlock is a |
143 | lineal descendant of his or her mother and is one of the natural |
144 | kindred of all members of the mother's family. The person is |
145 | also a lineal descendant of his or her father and is one of the |
146 | natural kindred of all members of the father's family, if: |
147 | (a) The natural parents participated in a marriage |
148 | ceremony before or after the birth of the person born out of |
149 | wedlock, even though the attempted marriage is void. |
150 | (b) The paternity of the father is established by an |
151 | adjudication before or after the death of the father. |
152 | (c) The paternity of the father is acknowledged in writing |
153 | by the father. |
154 | Section 9. Subsection (2) of section 732.2025, Florida |
155 | Statutes, is amended to read: |
156 | 732.2025 Definitions.--As used in ss. 732.2025-732.2155, |
157 | the term: |
158 | (2) "Elective share trust" means a trust under which |
159 | where: |
160 | (a) The surviving spouse is entitled for life to the use |
161 | of the property or to all of the income payable at least as |
162 | often as annually; |
163 | (b) The trust is subject to the provisions of former s. |
164 | 738.12 or the surviving spouse has the right under the terms of |
165 | the trust or state law to require the trustee either to make the |
166 | property productive or to convert it within a reasonable time; |
167 | and |
168 | (c) During the spouse's life, no person other than the |
169 | spouse has the power to distribute income or principal to anyone |
170 | other than the spouse. |
171 |
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172 | As used in this subsection, the term "income" has the same |
173 | meaning as that provided in s. 643(b) of the Internal Revenue |
174 | Code, as amended, and regulations adopted under that section. |
175 | Section 10. Paragraph (b) of subsection (8) of section |
176 | 732.2035, Florida Statutes, is amended to read: |
177 | 732.2035 Property entering into elective estate.--Except |
178 | as provided in s. 732.2045, the elective estate consists of the |
179 | sum of the values as determined under s. 732.2055 of the |
180 | following property interests: |
181 | (8) Property that was transferred during the 1-year period |
182 | preceding the decedent's death as a result of a transfer by the |
183 | decedent if the transfer was either of the following types: |
184 | (b) Any transfer of property to the extent not otherwise |
185 | included in the elective estate, made to or for the benefit of |
186 | any person, except: |
187 | 1. Any transfer of property for medical or educational |
188 | expenses to the extent it qualifies for exclusion from the |
189 | United States gift tax under s. 2503(e) of the Internal Revenue |
190 | Code, as amended; and |
191 | 2. After the application of subparagraph (b)1., the first |
192 | annual exclusion amount $10,000 of property transferred to or |
193 | for the benefit of each donee during the 1-year period, but only |
194 | to the extent the transfer qualifies for exclusion from the |
195 | United States gift tax under s. 2503(b) or (c) of the Internal |
196 | Revenue Code, as amended. For purposes of this subparagraph, the |
197 | term "annual exclusion amount" means the amount of one annual |
198 | exclusion under s. 2503(b) or s. 2503(c) of the Internal Revenue |
199 | Code, as amended. |
200 | Section 11. Subsection (2) of section 732.2075, Florida |
201 | Statutes, is amended to read: |
202 | 732.2075 Sources from which elective share payable; |
203 | abatement.-- |
204 | (2) If, after the application of subsection (1), the |
205 | elective share is not fully satisfied, the unsatisfied balance |
206 | shall be apportioned among the direct recipients of the |
207 | remaining elective estate in the following order of priority: |
208 | (a) Class 1.--The decedent's probate estate and revocable |
209 | trusts. |
210 | (b) Class 2.--Recipients of property interests, other than |
211 | protected charitable interests, included in the elective estate |
212 | under s. 732.2035(2), (3), or (6) and, to the extent the |
213 | decedent had at the time of death the power to designate the |
214 | recipient of the property, property interests, other than |
215 | protected charitable interests, included under s. 732.2035(5) |
216 | and (7). |
217 | (c) Class 3.--Recipients of all other property interests, |
218 | other than protected charitable interests, included in the |
219 | elective estate. |
220 | (d) Class 4.--Recipients of protected charitable lead |
221 | interests, but only to the extent and at such times that |
222 | contribution is permitted without disqualifying the charitable |
223 | interest in that property for a deduction under the United |
224 | States gift tax laws. |
225 |
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226 | For purposes of this subsection, a protected charitable interest |
227 | is any interest for which a charitable deduction with respect to |
228 | the transfer of the property was allowed or allowable to the |
229 | decedent or the decedent's spouse under the United States gift |
230 | or income tax laws. A protected charitable lead interest is a |
231 | protected charitable interest where one or more deductible |
232 | interests in charity precede some other nondeductible interest |
233 | or interests in the property. |
234 | Section 12. Subsection (1) of section 732.401, Florida |
235 | Statutes, is amended to read: |
236 | 732.401 Descent of homestead.-- |
237 | (1) If not devised as permitted by law and the Florida |
238 | Constitution, the homestead shall descend in the same manner as |
239 | other intestate property; but if the decedent is survived by a |
240 | spouse and one or more lineal descendants, the surviving spouse |
241 | shall take a life estate in the homestead, with a vested |
242 | remainder to the lineal descendants in being at the time of the |
243 | decedent's death per stirpes. |
244 | Section 13. Subsection (1) of section 732.4015, Florida |
245 | Statutes, is amended to read: |
246 | 732.4015 Devise of homestead.-- |
247 | (1) As provided by the Florida Constitution, the homestead |
248 | shall not be subject to devise if the owner is survived by a |
249 | spouse or a minor child or minor children, except that the |
250 | homestead may be devised to the owner's spouse if there is no |
251 | minor child or minor children. |
252 | Section 14. Subsection (1) of section 732.507, Florida |
253 | Statutes, is amended to read: |
254 | 732.507 Effect of subsequent marriage, birth, adoption, or |
255 | dissolution of marriage.-- |
256 | (1) Neither subsequent marriage, birth, nor adoption of |
257 | lineal descendants shall revoke the prior will of any person, |
258 | but the pretermitted child or spouse shall inherit as set forth |
259 | in ss. 732.301 and 732.302, regardless of the prior will. |
260 | Section 15. Section 733.620, Florida Statutes, is created |
261 | to read: |
262 | 733.620 Exculpation of personal representative.-- |
263 | (1) A term of a will relieving a personal representative |
264 | of liability to a beneficiary for breach of fiduciary duty is |
265 | unenforceable to the extent that the term: |
266 | (a) Relieves the personal representative of liability for |
267 | breach of fiduciary duty committed in bad faith or with reckless |
268 | indifference to the purposes of the will or the interests of |
269 | interested persons; or |
270 | (b) Was inserted into the will as the result of an abuse |
271 | by the personal representative of a fiduciary or confidential |
272 | relationship with the testator. |
273 | (2) An exculpatory term drafted or caused to be drafted by |
274 | the personal representative is invalid as an abuse of a |
275 | fiduciary or confidential relationship unless: |
276 | (a) The personal representative proves that the |
277 | exculpatory term is fair under the circumstances. |
278 | (b) The term's existence and contents were adequately |
279 | communicated directly to the testator. |
280 |
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281 | This subsection applies only to wills created on or after July |
282 | 1, 2007. |
283 | Section 16. Subsections (3) and (4) of section 734.101, |
284 | Florida Statutes, are amended to read: |
285 | 734.101 Foreign personal representative.-- |
286 | (3) Debtors who have not received a written demand for |
287 | payment from a personal representative or curator appointed in |
288 | this state within 90 60 days after appointment of a personal |
289 | representative in any other state or country, and whose property |
290 | in Florida is subject to a mortgage or other lien securing the |
291 | debt held by the foreign personal representative, may pay the |
292 | foreign personal representative after the expiration of 90 60 |
293 | days from the date of appointment of the foreign personal |
294 | representative. Thereafter, a satisfaction of the mortgage or |
295 | lien executed by the foreign personal representative, with an |
296 | authenticated copy of the letters or other evidence of authority |
297 | attached, may be recorded in the public records. The |
298 | satisfaction shall be an effective discharge of the mortgage or |
299 | lien, irrespective of whether the debtor making payment had |
300 | received a written demand before paying the debt. |
301 | (4) Except as provided in s. 655.936, all persons indebted |
302 | to the estate of a decedent, or having possession of personal |
303 | property belonging to the estate, who have received no written |
304 | demand from a personal representative or curator appointed in |
305 | this state for payment of the debt or the delivery of the |
306 | property are authorized to pay the debt or to deliver the |
307 | personal property to the foreign personal representative after |
308 | the expiration of 90 60 days from the date of appointment of the |
309 | foreign personal representative. |
310 | Section 17. Subsection (10) of section 895.02, Florida |
311 | Statutes, is amended to read: |
312 | 895.02 Definitions.--As used in ss. 895.01-895.08, the |
313 | term: |
314 | (10) "Trustee" means any of the following: |
315 | (a) Any person acting as trustee pursuant to a trust |
316 | established under s. 689.07 or s. 689.071 in which the trustee |
317 | holds legal or record title to real property. |
318 | (b) Any person who holds legal or record title to real |
319 | property in which any other person has a beneficial interest. |
320 | (c) Any successor trustee or trustees to any or all of the |
321 | foregoing persons. |
322 |
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323 | However, the term "trustee" does not include any person |
324 | appointed or acting as a personal representative as defined in |
325 | s. 731.201(27)(25) or appointed or acting as a trustee of any |
326 | testamentary trust or as a trustee of any indenture of trust |
327 | under which any bonds have been or are to be issued. |
328 | Section 18. This act shall take effect July 1, 2007. |