CS/HB 311

1
A bill to be entitled
2An act relating to probate; amending s. 222.21, F.S.;
3specifying additional circumstances under which certain
4funds or accounts are not exempt from a surviving spouse's
5claims; amending s. 731.110, F.S.; providing a
6prerequisite to admitting a will to probate or appointing
7a personal representative under certain circumstances;
8amending s. 731.201, F.S.; defining the terms "collateral
9heirs" and "descendant"; creating s. 731.401, F.S.;
10providing for enforceability of will or trust provisions
11requiring arbitration of certain disputes; amending ss.
12732.102, 732.103, 732.104, 732.108, 732.401, and 732.507,
13F.S.; conforming provisions to new definitions; amending
14s. 732.2025, F.S.; revising the definition of "elective
15share trust"; amending ss. 732.2035 and 732.2075, F.S.;
16revising provisions relating to the elective estate and
17elective share; amending s. 732.4015, F.S.; revising a
18provision prohibiting devise of a homestead; creating s.
19733.620, F.S.; providing for unenforceability and
20invalidity of certain will provisions exculpating personal
21representatives; amending s. 734.101, F.S.; increasing a
22time period for procedures relating to foreign personal
23representatives; amending s. 895.02, F.S.; correcting a
24cross-reference; providing an effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Paragraph (d) of subsection (2) of section
29222.21, Florida Statutes, is amended to read:
30     222.21  Exemption of pension money and certain tax-exempt
31funds or accounts from legal processes.--
32     (2)
33     (d)  Any fund or account described in paragraph (a) is not
34exempt from the claims of an alternate payee under a qualified
35domestic relations order or from the claims of a surviving
36spouse pursuant to an order determining the amount of elective
37share and contribution as provided in part II of chapter 732.
38However, the interest of any alternate payee under a qualified
39domestic relations order is exempt from all claims of any
40creditor, other than the Department of Revenue, of the alternate
41payee. As used in this paragraph, the terms "alternate payee"
42and "qualified domestic relations order" have the meanings
43ascribed to them in s. 414(p) of the Internal Revenue Code of
441986.
45     Section 2.  Subsection (3) is added to section 731.110,
46Florida Statutes, to read:
47     731.110  Caveat; proceedings.--
48     (3)  When a caveat has been filed by an interested person
49other than a creditor, the court shall not admit a will of the
50decedent to probate or appoint a personal representative until
51service, as provided by the Florida Probate Rules, has been
52accomplished.
53     Section 3.  Subsections (6) and (7) and subsections (8)
54through (37) of section 731.201, Florida Statutes, as amended by
55section 29 of chapter 2006-217, Laws of Florida, are renumbered
56as subsections (7) and (8) and subsections (10) through (39),
57respectively, and new subsections (6) and (9) are added to that
58section, to read:
59     731.201  General definitions.--Subject to additional
60definitions in subsequent chapters that are applicable to
61specific chapters or parts, and unless the context otherwise
62requires, in this code, in s. 409.9101, and in chapters 736,
63738, 739, and 744, the term:
64     (6)  "Collateral heirs" means heirs who are descendants of
65an ancestor, excluding the decedent's own descendants and
66ancestors.
67     (9)  "Descendant" means a person in any generational level
68down the applicable individual's descending line and includes
69children, grandchildren, and more remote descendants. The term
70"descendant" is synonymous with the terms "lineal descendant"
71and "issue" but excludes collateral heirs.
72     Section 4.  Section 731.401, Florida Statutes, is created
73to read:
74     731.401  Arbitration of disputes.--
75     (1)  A provision in a will or trust requiring the
76arbitration of disputes, other than disputes of the validity of
77all or a part of a will or trust, between or among the
78beneficiaries and a fiduciary under the will or trust, or any
79combination of such persons or entities, is enforceable.
80     (2)  Unless otherwise specified in the will or trust, a
81will or trust provision requiring arbitration shall be presumed
82to require binding arbitration under s. 44.104.
83     Section 5.  Section 732.102, Florida Statutes, is amended
84to read:
85     732.102  Spouse's share of intestate estate.--The intestate
86share of the surviving spouse is:
87     (1)  If there is no surviving lineal descendant of the
88decedent, the entire intestate estate.
89     (2)  If there are surviving lineal descendants of the
90decedent, all of whom are also lineal descendants of the
91surviving spouse, the first $60,000 of the intestate estate,
92plus one-half of the balance of the intestate estate. Property
93allocated to the surviving spouse to satisfy the $60,000 shall
94be valued at the fair market value on the date of distribution.
95     (3)  If there are surviving lineal descendants, one or more
96of whom are not lineal descendants of the surviving spouse, one-
97half of the intestate estate.
98     Section 6.  Subsections (1), (2), and (6) of section
99732.103, Florida Statutes, are amended to read:
100     732.103  Share of other heirs.--The part of the intestate
101estate not passing to the surviving spouse under s. 732.102, or
102the entire intestate estate if there is no surviving spouse,
103descends as follows:
104     (1)  To the lineal descendants of the decedent.
105     (2)  If there is no lineal descendant, to the decedent's
106father and mother equally, or to the survivor of them.
107     (6)  If none of the foregoing, and if any of the
108descendants of the decedent's great-grandparents were Holocaust
109victims as defined in s. 626.9543(3)(a), including such victims
110in countries cooperating with the discriminatory policies of
111Nazi Germany, then to the lineal descendants of the great-
112grandparents. The court shall allow any such descendant to meet
113a reasonable, not unduly restrictive, standard of proof to
114substantiate his or her lineage. This subsection only applies to
115escheated property and shall cease to be effective for
116proceedings filed after December 31, 2004.
117     Section 7.  Section 732.104, Florida Statutes, is amended
118to read:
119     732.104  Inheritance per stirpes.--Descent shall be per
120stirpes, whether to lineal descendants or to collateral heirs.
121     Section 8.  Section 732.108, Florida Statutes, is amended
122to read:
123     732.108  Adopted persons and persons born out of wedlock.--
124     (1)  For the purpose of intestate succession by or from an
125adopted person, the adopted person is a lineal descendant of the
126adopting parent and is one of the natural kindred of all members
127of the adopting parent's family, and is not a lineal descendant
128of his or her natural parents, nor is he or she one of the
129kindred of any member of the natural parent's family or any
130prior adoptive parent's family, except that:
131     (a)  Adoption of a child by the spouse of a natural parent
132has no effect on the relationship between the child and the
133natural parent or the natural parent's family.
134     (b)  Adoption of a child by a natural parent's spouse who
135married the natural parent after the death of the other natural
136parent has no effect on the relationship between the child and
137the family of the deceased natural parent.
138     (c)  Adoption of a child by a close relative, as defined in
139s. 63.172(2), has no effect on the relationship between the
140child and the families of the deceased natural parents.
141     (2)  For the purpose of intestate succession in cases not
142covered by subsection (1), a person born out of wedlock is a
143lineal descendant of his or her mother and is one of the natural
144kindred of all members of the mother's family. The person is
145also a lineal descendant of his or her father and is one of the
146natural kindred of all members of the father's family, if:
147     (a)  The natural parents participated in a marriage
148ceremony before or after the birth of the person born out of
149wedlock, even though the attempted marriage is void.
150     (b)  The paternity of the father is established by an
151adjudication before or after the death of the father.
152     (c)  The paternity of the father is acknowledged in writing
153by the father.
154     Section 9.  Subsection (2) of section 732.2025, Florida
155Statutes, is amended to read:
156     732.2025  Definitions.--As used in ss. 732.2025-732.2155,
157the term:
158     (2)  "Elective share trust" means a trust under which
159where:
160     (a)  The surviving spouse is entitled for life to the use
161of the property or to all of the income payable at least as
162often as annually;
163     (b)  The trust is subject to the provisions of former s.
164738.12 or the surviving spouse has the right under the terms of
165the trust or state law to require the trustee either to make the
166property productive or to convert it within a reasonable time;
167and
168     (c)  During the spouse's life, no person other than the
169spouse has the power to distribute income or principal to anyone
170other than the spouse.
171
172As used in this subsection, the term "income" has the same
173meaning as that provided in s. 643(b) of the Internal Revenue
174Code, as amended, and regulations adopted under that section.
175     Section 10.  Paragraph (b) of subsection (8) of section
176732.2035, Florida Statutes, is amended to read:
177     732.2035  Property entering into elective estate.--Except
178as provided in s. 732.2045, the elective estate consists of the
179sum of the values as determined under s. 732.2055 of the
180following property interests:
181     (8)  Property that was transferred during the 1-year period
182preceding the decedent's death as a result of a transfer by the
183decedent if the transfer was either of the following types:
184     (b)  Any transfer of property to the extent not otherwise
185included in the elective estate, made to or for the benefit of
186any person, except:
187     1.  Any transfer of property for medical or educational
188expenses to the extent it qualifies for exclusion from the
189United States gift tax under s. 2503(e) of the Internal Revenue
190Code, as amended; and
191     2.  After the application of subparagraph (b)1., the first
192annual exclusion amount $10,000 of property transferred to or
193for the benefit of each donee during the 1-year period, but only
194to the extent the transfer qualifies for exclusion from the
195United States gift tax under s. 2503(b) or (c) of the Internal
196Revenue Code, as amended. For purposes of this subparagraph, the
197term "annual exclusion amount" means the amount of one annual
198exclusion under s. 2503(b) or s. 2503(c) of the Internal Revenue
199Code, as amended.
200     Section 11.  Subsection (2) of section 732.2075, Florida
201Statutes, is amended to read:
202     732.2075  Sources from which elective share payable;
203abatement.--
204     (2)  If, after the application of subsection (1), the
205elective share is not fully satisfied, the unsatisfied balance
206shall be apportioned among the direct recipients of the
207remaining elective estate in the following order of priority:
208     (a)  Class 1.--The decedent's probate estate and revocable
209trusts.
210     (b)  Class 2.--Recipients of property interests, other than
211protected charitable interests, included in the elective estate
212under s. 732.2035(2), (3), or (6) and, to the extent the
213decedent had at the time of death the power to designate the
214recipient of the property, property interests, other than
215protected charitable interests, included under s. 732.2035(5)
216and (7).
217     (c)  Class 3.--Recipients of all other property interests,
218other than protected charitable interests, included in the
219elective estate.
220     (d)  Class 4.--Recipients of protected charitable lead
221interests, but only to the extent and at such times that
222contribution is permitted without disqualifying the charitable
223interest in that property for a deduction under the United
224States gift tax laws.
225
226For purposes of this subsection, a protected charitable interest
227is any interest for which a charitable deduction with respect to
228the transfer of the property was allowed or allowable to the
229decedent or the decedent's spouse under the United States gift
230or income tax laws. A protected charitable lead interest is a
231protected charitable interest where one or more deductible
232interests in charity precede some other nondeductible interest
233or interests in the property.
234     Section 12.  Subsection (1) of section 732.401, Florida
235Statutes, is amended to read:
236     732.401  Descent of homestead.--
237     (1)  If not devised as permitted by law and the Florida
238Constitution, the homestead shall descend in the same manner as
239other intestate property; but if the decedent is survived by a
240spouse and one or more lineal descendants, the surviving spouse
241shall take a life estate in the homestead, with a vested
242remainder to the lineal descendants in being at the time of the
243decedent's death per stirpes.
244     Section 13.  Subsection (1) of section 732.4015, Florida
245Statutes, is amended to read:
246     732.4015  Devise of homestead.--
247     (1)  As provided by the Florida Constitution, the homestead
248shall not be subject to devise if the owner is survived by a
249spouse or a minor child or minor children, except that the
250homestead may be devised to the owner's spouse if there is no
251minor child or minor children.
252     Section 14.  Subsection (1) of section 732.507, Florida
253Statutes, is amended to read:
254     732.507  Effect of subsequent marriage, birth, adoption, or
255dissolution of marriage.--
256     (1)  Neither subsequent marriage, birth, nor adoption of
257lineal descendants shall revoke the prior will of any person,
258but the pretermitted child or spouse shall inherit as set forth
259in ss. 732.301 and 732.302, regardless of the prior will.
260     Section 15.  Section 733.620, Florida Statutes, is created
261to read:
262     733.620  Exculpation of personal representative.--
263     (1)  A term of a will relieving a personal representative
264of liability to a beneficiary for breach of fiduciary duty is
265unenforceable to the extent that the term:
266     (a)  Relieves the personal representative of liability for
267breach of fiduciary duty committed in bad faith or with reckless
268indifference to the purposes of the will or the interests of
269interested persons; or
270     (b)  Was inserted into the will as the result of an abuse
271by the personal representative of a fiduciary or confidential
272relationship with the testator.
273     (2)  An exculpatory term drafted or caused to be drafted by
274the personal representative is invalid as an abuse of a
275fiduciary or confidential relationship unless:
276     (a)  The personal representative proves that the
277exculpatory term is fair under the circumstances.
278     (b)  The term's existence and contents were adequately
279communicated directly to the testator or to the independent
280attorney of the testator. This paragraph applies only to wills
281created on or after July 1, 2007.
282     Section 16.  Subsections (3) and (4) of section 734.101,
283Florida Statutes, are amended to read:
284     734.101  Foreign personal representative.--
285     (3)  Debtors who have not received a written demand for
286payment from a personal representative or curator appointed in
287this state within 90 60 days after appointment of a personal
288representative in any other state or country, and whose property
289in Florida is subject to a mortgage or other lien securing the
290debt held by the foreign personal representative, may pay the
291foreign personal representative after the expiration of 90 60
292days from the date of appointment of the foreign personal
293representative. Thereafter, a satisfaction of the mortgage or
294lien executed by the foreign personal representative, with an
295authenticated copy of the letters or other evidence of authority
296attached, may be recorded in the public records. The
297satisfaction shall be an effective discharge of the mortgage or
298lien, irrespective of whether the debtor making payment had
299received a written demand before paying the debt.
300     (4)  Except as provided in s. 655.936, all persons indebted
301to the estate of a decedent, or having possession of personal
302property belonging to the estate, who have received no written
303demand from a personal representative or curator appointed in
304this state for payment of the debt or the delivery of the
305property are authorized to pay the debt or to deliver the
306personal property to the foreign personal representative after
307the expiration of 90 60 days from the date of appointment of the
308foreign personal representative.
309     Section 17.  Subsection (10) of section 895.02, Florida
310Statutes, is amended to read:
311     895.02  Definitions.--As used in ss. 895.01-895.08, the
312term:
313     (10)  "Trustee" means any of the following:
314     (a)  Any person acting as trustee pursuant to a trust
315established under s. 689.07 or s. 689.071 in which the trustee
316holds legal or record title to real property.
317     (b)  Any person who holds legal or record title to real
318property in which any other person has a beneficial interest.
319     (c)  Any successor trustee or trustees to any or all of the
320foregoing persons.
321
322However, the term "trustee" does not include any person
323appointed or acting as a personal representative as defined in
324s. 731.201(27)(25) or appointed or acting as a trustee of any
325testamentary trust or as a trustee of any indenture of trust
326under which any bonds have been or are to be issued.
327     Section 18.  This act shall take effect July 1, 2007.


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