Florida Senate - 2017                              CS for SB 724
       
       
        
       By the Committee on Judiciary; and Senator Passidomo
       
       
       
       
       
       590-02445-17                                           2017724c1
    1                        A bill to be entitled                      
    2         An act relating to estates; amending s. 732.2025,
    3         F.S.; conforming cross-references; amending s.
    4         732.2035, F.S.; providing that a decedent’s property
    5         interest in the protected homestead is included in the
    6         elective estate; amending s. 732.2045, F.S.; revising
    7         the circumstances under which the decedent’s property
    8         interest in the protected homestead is excluded from
    9         the elective estate; amending s. 732.2055, F.S.;
   10         providing for the valuation of the decedent’s
   11         protected homestead under certain circumstances;
   12         amending s. 732.2075, F.S.; conforming cross
   13         references; amending s. 732.2085, F.S.; requiring the
   14         payment of interest on any unpaid portion of a
   15         person’s required contribution toward the elective
   16         share with respect to certain property; amending s.
   17         732.2095, F.S.; revising provisions relating to the
   18         valuation of a surviving spouse’s interest in property
   19         to include protected homestead; conforming cross
   20         references; amending s. 732.2115, F.S.; conforming a
   21         cross-reference; amending s. 732.2135, F.S.; revising
   22         the period within which a specified person may
   23         petition the court for an extension of time for making
   24         an election; removing a provision authorizing
   25         assessment of attorney fees and costs if an election
   26         is made in bad faith; amending s. 732.2145, F.S.;
   27         requiring the payment of interest on any unpaid
   28         portion of a person’s required contribution toward the
   29         elective share after a certain date; creating s.
   30         732.2151, F.S.; providing for the award of fees and
   31         costs in certain elective share proceedings; providing
   32         that a court may direct payment from certain sources;
   33         providing applicability; amending s. 738.606, F.S.;
   34         providing that a surviving spouse may require a
   35         trustee of a marital or elective share trust to make
   36         property productive of income; providing
   37         applicability; providing an effective date.
   38          
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Subsections (1) and (9) of section 732.2025,
   42  Florida Statutes, are amended to read:
   43         732.2025 Definitions.—As used in ss. 732.2025-732.2155, the
   44  term:
   45         (1) “Direct recipient” means the decedent’s probate estate
   46  and any other person who receives property included in the
   47  elective estate by transfer from the decedent, including
   48  transfers described in s. 732.2035(9) s. 732.2035(8), by right
   49  of survivorship, or by beneficiary designation under a governing
   50  instrument. For this purpose, a beneficiary of an insurance
   51  policy on the decedent’s life, the net cash surrender value of
   52  which is included in the elective estate, is treated as having
   53  received property included in the elective estate. In the case
   54  of property held in trust, “direct recipient” includes the
   55  trustee but excludes the beneficiaries of the trust.
   56         (9) “Revocable trust” means a trust that is includable in
   57  the elective estate under s. 732.2035(5) s. 732.2035(4).
   58         Section 2. Section 732.2035, Florida Statutes, is amended
   59  to read:
   60         732.2035 Property entering into elective estate.—Except as
   61  provided in s. 732.2045, the elective estate consists of the sum
   62  of the values as determined under s. 732.2055 of the following
   63  property interests:
   64         (1) The decedent’s probate estate.
   65         (2) The decedent’s interest in property which constitutes
   66  the protected homestead of the decedent.
   67         (3) The decedent’s ownership interest in accounts or
   68  securities registered in “Pay On Death,” “Transfer On Death,”
   69  “In Trust For,” or coownership with right of survivorship form.
   70  For this purpose, “decedent’s ownership interest” means, in the
   71  case of accounts or securities held in tenancy by the entirety,
   72  one-half of the value of the account or security, and in all
   73  other cases, that portion of the accounts or securities which
   74  the decedent had, immediately before death, the right to
   75  withdraw or use without the duty to account to any person.
   76         (4)(3) The decedent’s fractional interest in property,
   77  other than property described in subsection (3)(2) or subsection
   78  (8)(7), held by the decedent in joint tenancy with right of
   79  survivorship or in tenancy by the entirety. For this purpose,
   80  “decedent’s fractional interest in property” means the value of
   81  the property divided by the number of tenants.
   82         (5)(4) That portion of property, other than property
   83  described in subsection (2) and subsection (3), transferred by
   84  the decedent to the extent that at the time of the decedent’s
   85  death the transfer was revocable by the decedent alone or in
   86  conjunction with any other person. This subsection does not
   87  apply to a transfer that is revocable by the decedent only with
   88  the consent of all persons having a beneficial interest in the
   89  property.
   90         (6)(a)(5)(a) That portion of property, other than property
   91  described in subsection (2)(3), subsection (4), subsection (5),
   92  or subsection (8)(7), transferred by the decedent to the extent
   93  that at the time of the decedent’s death:
   94         1. The decedent possessed the right to, or in fact enjoyed
   95  the possession or use of, the income or principal of the
   96  property; or
   97         2. The principal of the property could, in the discretion
   98  of any person other than the spouse of the decedent, be
   99  distributed or appointed to or for the benefit of the decedent.
  100  
  101  In the application of this subsection, a right to payments under
  102  a commercial or private annuity, an annuity trust, a unitrust,
  103  or a similar arrangement shall be treated as a right to that
  104  portion of the income of the property necessary to equal the
  105  annuity, unitrust, or other payment.
  106         (b) The amount included under this subsection is:
  107         1. With respect to subparagraph (a)1., the value of the
  108  portion of the property to which the decedent’s right or
  109  enjoyment related, to the extent the portion passed to or for
  110  the benefit of any person other than the decedent’s probate
  111  estate; and
  112         2. With respect to subparagraph (a)2., the value of the
  113  portion subject to the discretion, to the extent the portion
  114  passed to or for the benefit of any person other than the
  115  decedent’s probate estate.
  116         (c) This subsection does not apply to any property if the
  117  decedent’s only interests in the property are that:
  118         1. The property could be distributed to or for the benefit
  119  of the decedent only with the consent of all persons having a
  120  beneficial interest in the property; or
  121         2. The income or principal of the property could be
  122  distributed to or for the benefit of the decedent only through
  123  the exercise or in default of an exercise of a general power of
  124  appointment held by any person other than the decedent; or
  125         3. The income or principal of the property is or could be
  126  distributed in satisfaction of the decedent’s obligation of
  127  support; or
  128         4. The decedent had a contingent right to receive
  129  principal, other than at the discretion of any person, which
  130  contingency was beyond the control of the decedent and which had
  131  not in fact occurred at the decedent’s death.
  132         (7)(6) The decedent’s beneficial interest in the net cash
  133  surrender value immediately before death of any policy of
  134  insurance on the decedent’s life.
  135         (8)(7) The value of amounts payable to or for the benefit
  136  of any person by reason of surviving the decedent under any
  137  public or private pension, retirement, or deferred compensation
  138  plan, or any similar arrangement, other than benefits payable
  139  under the federal Railroad Retirement Act or the federal Social
  140  Security System. In the case of a defined contribution plan as
  141  defined in s. 414(i) of the Internal Revenue Code of 1986, as
  142  amended, this subsection shall not apply to the excess of the
  143  proceeds of any insurance policy on the decedent’s life over the
  144  net cash surrender value of the policy immediately before the
  145  decedent’s death.
  146         (9)(8) Property that was transferred during the 1-year
  147  period preceding the decedent’s death as a result of a transfer
  148  by the decedent if the transfer was either of the following
  149  types:
  150         (a) Any property transferred as a result of the termination
  151  of a right or interest in, or power over, property that would
  152  have been included in the elective estate under subsection
  153  (5)(4) or subsection (6)(5) if the right, interest, or power had
  154  not terminated until the decedent’s death.
  155         (b) Any transfer of property to the extent not otherwise
  156  included in the elective estate, made to or for the benefit of
  157  any person, except:
  158         1. Any transfer of property for medical or educational
  159  expenses to the extent it qualifies for exclusion from the
  160  United States gift tax under s. 2503(e) of the Internal Revenue
  161  Code, as amended; and
  162         2. After the application of subparagraph 1., the first
  163  annual exclusion amount of property transferred to or for the
  164  benefit of each donee during the 1-year period, but only to the
  165  extent the transfer qualifies for exclusion from the United
  166  States gift tax under s. 2503(b) or (c) of the Internal Revenue
  167  Code, as amended. For purposes of this subparagraph, the term
  168  “annual exclusion amount” means the amount of one annual
  169  exclusion under s. 2503(b) or (c) of the Internal Revenue Code,
  170  as amended.
  171         (c) Except as provided in paragraph (d), for purposes of
  172  this subsection:
  173         1. A “termination” with respect to a right or interest in
  174  property occurs when the decedent transfers or relinquishes the
  175  right or interest, and, with respect to a power over property, a
  176  termination occurs when the power terminates by exercise,
  177  release, lapse, default, or otherwise.
  178         2. A distribution from a trust the income or principal of
  179  which is subject to subsection (5)(4), subsection (6)(5), or
  180  subsection (10)(9) shall be treated as a transfer of property by
  181  the decedent and not as a termination of a right or interest in,
  182  or a power over, property.
  183         (d) Notwithstanding anything in paragraph (c) to the
  184  contrary:
  185         1. A “termination” with respect to a right or interest in
  186  property does not occur when the right or interest terminates by
  187  the terms of the governing instrument unless the termination is
  188  determined by reference to the death of the decedent and the
  189  court finds that a principal purpose for the terms of the
  190  instrument relating to the termination was avoidance of the
  191  elective share.
  192         2. A distribution from a trust is not subject to this
  193  subsection if the distribution is required by the terms of the
  194  governing instrument unless the event triggering the
  195  distribution is determined by reference to the death of the
  196  decedent and the court finds that a principal purpose of the
  197  terms of the governing instrument relating to the distribution
  198  is avoidance of the elective share.
  199         (10)(9) Property transferred in satisfaction of the
  200  elective share.
  201         Section 3. Paragraph (i) of subsection (1) of section
  202  732.2045, Florida Statutes, is amended to read:
  203         732.2045 Exclusions and overlapping application.—
  204         (1) EXCLUSIONS.—Section 732.2035 does not apply to:
  205         (i) Property which constitutes the protected homestead of
  206  the decedent if the surviving spouse validly waived his or her
  207  homestead rights as provided under s. 732.702, or otherwise
  208  under applicable law, and such spouse did not receive any
  209  interest in the protected homestead upon the decedent’s death
  210  whether held by the decedent or by a trust at the decedent’s
  211  death.
  212         Section 4. Section 732.2055, Florida Statutes, is amended
  213  to read:
  214         732.2055 Valuation of the elective estate.—For purposes of
  215  s. 732.2035, “value” means:
  216         (1)(a)In the case of protected homestead:
  217         1.If the surviving spouse receives a fee simple interest,
  218  the fair market value of the protected homestead on the date of
  219  the decedent’s death.
  220         2.If the spouse takes a life estate as provided in s.
  221  732.401(1), or validly elects to take an undivided one-half
  222  interest as a tenant in common as provided in s. 732.401(2),
  223  one-half of the fair market value of the protected homestead on
  224  the date of the decedent’s death.
  225         3.If the surviving spouse validly waived his or her
  226  homestead rights as provided under s. 732.702 or otherwise under
  227  applicable law, but nevertheless receives an interest in the
  228  protected homestead, other than an interest described in s.
  229  732.401, including an interest in trust, the value of the
  230  spouse’s interest is determined as property interests that are
  231  not protected homestead.
  232         (b)For purposes of this subsection, the term “fair market
  233  value” means the net of the aggregate amount, as of the date of
  234  the decedent’s death, of all mortgages, liens, and security
  235  interests to which the protected homestead is subject and for
  236  which the decedent is liable, but only to the extent that such
  237  amount is not otherwise deducted as a claim paid or payable from
  238  the elective estate.
  239         (2) In the case of any policy of insurance on the
  240  decedent’s life includable under s. 732.2035(5), (6), or (7) s.
  241  732.2035(4), (5), or (6), the net cash surrender value of the
  242  policy immediately before the decedent’s death.
  243         (3)(2) In the case of any policy of insurance on the
  244  decedent’s life includable under s. 732.2035(9) s. 732.2035(8),
  245  the net cash surrender value of the policy on the date of the
  246  termination or transfer.
  247         (4)(3) In the case of amounts includable under s.
  248  732.2035(8) s. 732.2035(7), the transfer tax value of the
  249  amounts on the date of the decedent’s death.
  250         (5)(4) In the case of other property included under s.
  251  732.2035(9) s. 732.2035(8), the fair market value of the
  252  property on the date of the termination or transfer, computed
  253  after deducting any mortgages, liens, or security interests on
  254  the property as of that date.
  255         (6)(5) In the case of all other property, the fair market
  256  value of the property on the date of the decedent’s death,
  257  computed after deducting from the total value of the property:
  258         (a) All claims paid or payable from the elective estate;
  259  and
  260         (b) To the extent they are not deducted under paragraph
  261  (a), all mortgages, liens, or security interests on the
  262  property.
  263         Section 5. Paragraph (b) of subsection (1), paragraph (b)
  264  of subsection (2), and paragraph (c) of subsection (3) of
  265  section 732.2075, Florida Statutes, are amended to read:
  266         732.2075 Sources from which elective share payable;
  267  abatement.—
  268         (1) Unless otherwise provided in the decedent’s will or, in
  269  the absence of a provision in the decedent’s will, in a trust
  270  referred to in the decedent’s will, the following are applied
  271  first to satisfy the elective share:
  272         (b) To the extent paid to or for the benefit of the
  273  surviving spouse, amounts payable under any plan or arrangement
  274  described in s. 732.2035(8) s. 732.2035(7).
  275         (2) If, after the application of subsection (1), the
  276  elective share is not fully satisfied, the unsatisfied balance
  277  shall be allocated entirely to one class of direct recipients of
  278  the remaining elective estate and apportioned among those
  279  recipients, and if the elective share amount is not fully
  280  satisfied, to the next class of direct recipients, in the
  281  following order of priority, until the elective share amount is
  282  satisfied:
  283         (b) Class 2.—Recipients of property interests, other than
  284  protected charitable interests, included in the elective estate
  285  under s. 732.2035(3), (4), or (7) s. 732.2035(2), (3), or (6)
  286  and, to the extent the decedent had at the time of death the
  287  power to designate the recipient of the property, property
  288  interests, other than protected charitable interests, included
  289  under s. 732.2035(6) and (8) s. 732.2035(5) and (7).
  290  
  291  For purposes of this subsection, a protected charitable interest
  292  is any interest for which a charitable deduction with respect to
  293  the transfer of the property was allowed or allowable to the
  294  decedent or the decedent’s spouse under the United States gift
  295  or income tax laws.
  296         (3) If, after the application of subsections (1) and (2),
  297  the elective share amount is not fully satisfied, the additional
  298  amount due to the surviving spouse shall be determined and
  299  satisfied as follows:
  300         (c) If there is more than one trust to which this
  301  subsection could apply, unless otherwise provided in the
  302  decedent’s will or, in the absence of a provision in the
  303  decedent’s will, in a trust referred to in the decedent’s will,
  304  the unsatisfied balance shall be apportioned pro rata to all
  305  such trusts in proportion to the value, as determined under s.
  306  732.2095(2)(f) s. 732.2095(2)(d), of the surviving spouse’s
  307  beneficial interests in the trusts.
  308         Section 6. Paragraph (a) of subsection (3) of section
  309  732.2085, Florida Statutes, is amended to read:
  310         732.2085 Liability of direct recipients and beneficiaries.—
  311         (3) If a person pays the value of the property on the date
  312  of a sale or exchange or contributes all of the property
  313  received, as provided in paragraph (2)(b):
  314         (a) No further contribution toward satisfaction of the
  315  elective share shall be required with respect to that property.
  316  However, if a person’s required contribution is not fully paid
  317  by 2 years after the date of the death of the decedent, such
  318  person must also pay interest at the statutory rate on any
  319  portion of the required contribution that remains unpaid.
  320         Section 7. Section 732.2095, Florida Statutes, is amended
  321  to read:
  322         732.2095 Valuation of property used to satisfy elective
  323  share.—
  324         (1) DEFINITIONS.—As used in this section, the term:
  325         (a) “Applicable valuation date” means:
  326         1. In the case of transfers in satisfaction of the elective
  327  share, the date of the decedent’s death.
  328         2. In the case of property held in a qualifying special
  329  needs trust on the date of the decedent’s death, the date of the
  330  decedent’s death.
  331         3. In the case of other property irrevocably transferred to
  332  or for the benefit of the surviving spouse during the decedent’s
  333  life, the date of the transfer.
  334         4. In the case of property distributed to the surviving
  335  spouse by the personal representative, the date of distribution.
  336         5. Except as provided in subparagraphs 1., 2., and 3., in
  337  the case of property passing in trust for the surviving spouse,
  338  the date or dates the trust is funded in satisfaction of the
  339  elective share.
  340         6. In the case of property described in s. 732.2035(2),
  341  (3), or (4) s. 732.2035(2) or (3), the date of the decedent’s
  342  death.
  343         7. In the case of proceeds of any policy of insurance
  344  payable to the surviving spouse, the date of the decedent’s
  345  death.
  346         8. In the case of amounts payable to the surviving spouse
  347  under any plan or arrangement described in s. 732.2035(8) s.
  348  732.2035(7), the date of the decedent’s death.
  349         9. In all other cases, the date of the decedent’s death or
  350  the date the surviving spouse first comes into possession of the
  351  property, whichever occurs later.
  352         (b) “Qualifying power of appointment” means a general power
  353  of appointment that is exercisable alone and in all events by
  354  the decedent’s spouse in favor of the spouse or the spouse’s
  355  estate. For this purpose, a general power to appoint by will is
  356  a qualifying power of appointment if the power may be exercised
  357  by the spouse in favor of the spouse’s estate without the
  358  consent of any other person.
  359         (c) “Qualifying invasion power” means a power held by the
  360  surviving spouse or the trustee of an elective share trust to
  361  invade trust principal for the health, support, and maintenance
  362  of the spouse. The power may, but need not, provide that the
  363  other resources of the spouse are to be taken into account in
  364  any exercise of the power.
  365         (2) Except as provided in this subsection, the value of
  366  property for purposes of s. 732.2075 is the fair market value of
  367  the property on the applicable valuation date.
  368         (a) If the surviving spouse has a life interest in property
  369  not in trust that entitles the spouse to the use of the property
  370  for life, including, without limitation, a life estate in
  371  protected homestead as provided in s. 732.401(1), the value of
  372  the spouse’s interest is one-half of the value of the property
  373  on the applicable valuation date.
  374         (b)If the surviving spouse elects to take an undivided
  375  one-half interest in protected homestead as a tenant in common
  376  as provided in s. 732.401(2), the value of the spouse’s interest
  377  is one-half of the value of the property on the applicable
  378  valuation date.
  379         (c)If the surviving spouse validly waived his or her
  380  homestead rights as provided in s. 732.702 or otherwise under
  381  applicable law but nevertheless receives an interest in
  382  protected homestead, other than an interest described in s.
  383  732.401, including, without limitation, an interest in trust,
  384  the value of the spouse’s interest is determined as property
  385  interests that are not protected homestead.
  386         (d)(b) If the surviving spouse has an interest in a trust,
  387  or portion of a trust, which meets the requirements of an
  388  elective share trust, the value of the spouse’s interest is a
  389  percentage of the value of the principal of the trust, or trust
  390  portion, on the applicable valuation date as follows:
  391         1. One hundred percent if the trust instrument includes
  392  both a qualifying invasion power and a qualifying power of
  393  appointment.
  394         2. Eighty percent if the trust instrument includes a
  395  qualifying invasion power but no qualifying power of
  396  appointment.
  397         3. Fifty percent in all other cases.
  398         (e)(c) If the surviving spouse is a beneficiary of a trust,
  399  or portion of a trust, which meets the requirements of a
  400  qualifying special needs trust, the value of the principal of
  401  the trust, or trust portion, on the applicable valuation date.
  402         (f)(d) If the surviving spouse has an interest in a trust
  403  that does not meet the requirements of either an elective share
  404  trust or a qualifying special needs trust, the value of the
  405  spouse’s interest is the transfer tax value of the interest on
  406  the applicable valuation date; however, the aggregate value of
  407  all of the spouse’s interests in the trust shall not exceed one
  408  half of the value of the trust principal on the applicable
  409  valuation date.
  410         (g)(e) In the case of any policy of insurance on the
  411  decedent’s life the proceeds of which are payable outright or to
  412  a trust described in paragraph (d)(b), paragraph (e)(c), or
  413  paragraph (f)(d), the value of the policy for purposes of s.
  414  732.2075 and paragraphs (d), (e), and (f) (b), (c), and (d) is
  415  the net proceeds.
  416         (h)(f) In the case of a right to one or more payments from
  417  an annuity or under a similar contractual arrangement or under
  418  any plan or arrangement described in s. 732.2035(8) s.
  419  732.2035(7), the value of the right to payments for purposes of
  420  s. 732.2075 and paragraphs (d), (e), and (f) (b), (c), and (d)
  421  is the transfer tax value of the right on the applicable
  422  valuation date.
  423         Section 8. Section 732.2115, Florida Statutes, is amended
  424  to read:
  425         732.2115 Protection of payors and other third parties.
  426  Although a property interest is included in the decedent’s
  427  elective estate under s. 732.2035(3)-(9) s. 732.2035(2)-(8), a
  428  payor or other third party is not liable for paying,
  429  distributing, or transferring the property to a beneficiary
  430  designated in a governing instrument, or for taking any other
  431  action in good faith reliance on the validity of a governing
  432  instrument.
  433         Section 9. Section 732.2135, Florida Statutes, is amended
  434  to read:
  435         732.2135 Time of election; extensions; withdrawal.—
  436         (1) Except as provided in subsection (2), the election must
  437  be filed on or before the earlier of the date that is 6 months
  438  after the date of service of a copy of the notice of
  439  administration on the surviving spouse, or an attorney in fact
  440  or guardian of the property of the surviving spouse, or the date
  441  that is 2 years after the date of the decedent’s death.
  442         (2) Within the period provided in subsection (1), or 40
  443  days after the date of termination of any proceeding which
  444  affects the amount the spouse is entitled to receive under s.
  445  732.2075(1), whichever is later, but no more than 2 years after
  446  the decedent’s death, the surviving spouse or an attorney in
  447  fact or guardian of the property of the surviving spouse may
  448  petition the court for an extension of time for making an
  449  election. For good cause shown, the court may extend the time
  450  for election. If the court grants the petition for an extension,
  451  the election must be filed within the time allowed by the
  452  extension.
  453         (3) The surviving spouse or an attorney in fact, guardian
  454  of the property, or personal representative of the surviving
  455  spouse may withdraw an election at any time within 8 months
  456  after the decedent’s death and before the court’s order of
  457  contribution.
  458         (4) A petition for an extension of the time for making the
  459  election or for approval to make the election shall toll the
  460  time for making the election.
  461         (5)If the court determines that an election is made or
  462  pursued in bad faith, the court may assess attorney’s fees and
  463  costs against the surviving spouse or the surviving spouse’s
  464  estate.
  465         Section 10. Subsection (1) of section 732.2145, Florida
  466  Statutes, is amended to read:
  467         732.2145 Order of contribution; personal representative’s
  468  duty to collect contribution.—
  469         (1) The court shall determine the elective share and
  470  contribution. Any amount of the elective share not satisfied
  471  within 2 years of the date of death of the decedent shall bear
  472  interest at the statutory rate until fully satisfied, even if an
  473  order of contribution has not yet been entered. Contributions
  474  shall bear interest at the statutory rate beginning 90 days
  475  after the order of contribution. The order is prima facie
  476  correct in proceedings in any court or jurisdiction.
  477         Section 11. Section 732.2151, Florida Statutes, is created
  478  to read:
  479         732.2151Award of fees and costs in elective share
  480  proceedings.—
  481         (1)The court may award taxable costs as in chancery
  482  actions, including attorney fees, in any proceeding under this
  483  part in which there is an objection to or dispute over:
  484         (a)The entitlement to or the amount of the elective share;
  485         (b)The property interests included in the elective estate,
  486  or its value; or
  487         (c)The satisfaction of the elective share.
  488         (2)When awarding taxable costs or attorney fees, the court
  489  may do one or more of the following:
  490         (a)Direct payment from the estate.
  491         (b)Direct payment from a party’s interest in the elective
  492  share or the elective estate.
  493         (c)Enter a judgement that can be satisfied from other
  494  property of the party.
  495         (3)In addition to any of the fees that may be awarded
  496  under subsections (1) and (2), if the personal representative
  497  does not file a petition to determine the amount of the elective
  498  share as required by the Florida Probate Rules, the electing
  499  spouse or the attorney in fact, guardian of the property, or
  500  personal representative of the electing spouse may be awarded
  501  from the estate reasonable costs, including attorney fees,
  502  incurred in connection with the preparation and filing of the
  503  petition.
  504         (4)This section applies to all proceedings commenced on or
  505  after July 1, 2017, without regard to the date of the decedent’s
  506  death.
  507         Section 12. Subsection (1) of section 738.606, Florida
  508  Statutes, is amended to read:
  509         738.606 Property not productive of income.—
  510         (1) If a marital deduction under the Internal Revenue Code
  511  or comparable law of any state is allowed for all or part of a
  512  trust, or if assets are transferred to a trust that satisfies
  513  the requirements of s. 732.2025(2)(a) and (c), and such assets
  514  have been used in whole or in part to satisfy an election by a
  515  surviving spouse under s. 732.2125 and the income of which must
  516  be distributed to the grantor’s spouse and the assets of which
  517  consist substantially of property that, in the aggregate, does
  518  not provide the spouse with sufficient income from or use of the
  519  trust assets, and if the amounts the trustee transfers from
  520  principal to income under s. 738.104 and distributes to the
  521  spouse from principal pursuant to the terms of the trust are
  522  insufficient to provide the spouse with the beneficial enjoyment
  523  required to obtain the marital deduction, even though, in the
  524  case of an elective share trust, a marital deduction is not made
  525  or is only partially made, the spouse may require the trustee of
  526  such marital trust or elective share trust to make property
  527  productive of income, convert property within a reasonable time,
  528  or exercise the power conferred by ss. 738.104 and 738.1041. The
  529  trustee may decide which action or combination of actions to
  530  take.
  531         Section 13. Applicability.—Except as otherwise provided in
  532  this act, the amendments made by this act apply to decedents
  533  whose death occurred on or after July 1, 2017.
  534         Section 14. This act shall take effect July 1, 2017.