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