| 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 |
|
| 26 | Be It Enacted by the Legislature of the State of Florida: |
| 27 |
|
| 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 |
|
| 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 |
|
| 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 |
|
| 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. |