Florida Wills and Trusts: Probate Statutes

CHAPTER 732

PROBATE CODE: INTESTATE SUCCESSION AND WILLS

PART I

INTESTATE SUCCESSION (ss. 732.101-732.111)

PART II

ELECTIVE SHARE OF SURVIVING SPOUSE; RIGHTS IN COMMUNITY PROPERTY (ss. 732.201-732.228)

PART III

PRETERMITTED SPOUSE AND CHILDREN (ss. 732.301, 732.302)

PART IV

EXEMPT PROPERTY AND ALLOWANCES (ss. 732.401-732.403)

PART V

WILLS (ss. 732.501-732.518)

PART VI

RULES OF CONSTRUCTION (ss. 732.6005-732.611)

PART VII

CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
(ss. 732.701, 732.702)

PART VIII

GENERAL PROVISIONS (ss. 732.801-732.804)

PART IX

PRODUCTION OF WILLS (s. 732.901)

PART I

INTESTATE SUCCESSION

732.101 Intestate estate.

732.102 Spouse's share of intestate estate.

732.103 Share of other heirs.

732.104 Inheritance per stirpes.

732.105 Half blood.

732.106 Afterborn heirs.

732.107 Escheat.

732.108 Adopted persons and persons born out of wedlock.

732.109 Debts to decedent.

732.1101 Aliens.

732.111 Dower and curtesy abolished.

732.101 Intestate estate.--

(1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code.

(2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property.

History.--s. 1, ch. 74-106; s. 8, ch. 75-220; s. 14, ch. 2001-226.

Note.--Created from former s. 731.23.

732.102 Spouse's share of intestate estate.--The intestate share of the surviving spouse is:

(1) If there is no surviving lineal descendant of the decedent, the entire intestate estate.

(2) If there are surviving lineal descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.

(3) If there are surviving lineal descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

History.--s. 1, ch. 74-106; s. 8, ch. 75-220; s. 15, ch. 2001-226.

Note.--Created from former s. 731.23.

732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the lineal descendants of the decedent.

(2) If there is no lineal descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

History.--s. 1, ch. 74-106; s. 8, ch. 75-220; s. 1, ch. 77-174; s. 16, ch. 2001-226.

Note.--Created from former s. 731.23.

732.104 Inheritance per stirpes.--Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.

History.--s. 1, ch. 74-106; s. 9, ch. 75-220.

Note.--Created from former s. 731.25.

732.105 Half blood.--When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.

History.--s. 1, ch. 74-106; s. 10, ch. 75-220.

Note.--Created from former s. 731.24.

732.106 Afterborn heirs.--Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime.

History.--s. 1, ch. 74-106; s. 10, ch. 75-220; s. 6, ch. 77-87; s. 952, ch. 97-102.

Note.--Created from former s. 731.11.

732.107 Escheat.--

(1) When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state.

(2) Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund.

(3) At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds shall become absolute.

(4) The Department of Legal Affairs shall represent the state in all proceedings concerning escheated estates.

(5)(a) If a person entitled to the proceeds assigns the rights to receive payment to an attorney, Florida-certified public accountant, or private investigative agency which is duly licensed to do business in this state pursuant to a written agreement with that person, the Department of Financial Services is authorized to make distribution in accordance with the assignment.

(b) Payments made to an attorney, Florida-certified public accountant, or private investigative agency shall be promptly deposited into a trust or escrow account which is regularly maintained by the attorney, Florida-certified public accountant, or private investigative agency in a financial institution authorized to accept such deposits and located in this state.

(c) Distribution by the attorney, Florida-certified public accountant, or private investigative agency to the person entitled to the proceeds shall be made within 10 days following final credit of the deposit into the trust or escrow account at the financial institution, unless a party to the agreement protests the distribution in writing before it is made.

(d) The department shall not be civilly or criminally liable for any proceeds distributed pursuant to this subsection, provided such distribution is made in good faith.

History.--s. 1, ch. 74-106; s. 10, ch. 75-220; s. 4, ch. 89-291; s. 9, ch. 89-299; s. 953, ch. 97-102; s. 32, ch. 2001-36; s. 17, ch. 2001-226; s. 1896, ch. 2003-261.

Note.--Created from former s. 731.33.

732.108 Adopted persons and persons born out of wedlock.--

(1) For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family, and is not a lineal descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family or any prior adoptive parent's family, except that:

(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family.

(b) Adoption of a child by a natural parent's spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents.

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a lineal descendant of his or her father and is one of the natural kindred of all members of the father's family, if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father.

History.--s. 1, ch. 74-106; s. 11, ch. 75-220; s. 7, ch. 77-87; s. 1, ch. 77-174; s. 2, ch. 87-27; s. 954, ch. 97-102.

Note.--Created from former ss. 731.29, 731.30.

732.109 Debts to decedent.--A debt owed to the decedent shall not be charged against the intestate share of any person except the debtor. If the debtor does not survive the decedent, the debt shall not be taken into account in computing the intestate share of the debtor's heirs.

History.--s. 1, ch. 74-106; s. 11, ch. 75-220.

Note.--Created from former s. 736.01.

732.1101 Aliens.--Aliens shall have the same rights of inheritance as citizens.

History.--s. 1, ch. 74-106; s. 113, ch. 75-220; s. 955, ch. 97-102; s. 18, ch. 2001-226.

Note.--Created from former s. 731.28.

732.111 Dower and curtesy abolished.--Dower and curtesy are abolished.

History.--s. 1, ch. 74-106; s. 113, ch. 75-220.

PART II

ELECTIVE SHARE OF SURVIVING SPOUSE;
RIGHTS IN COMMUNITY PROPERTY

732.201 Right to elective share.

732.2025 Definitions.

732.2035 Property entering into elective estate.

732.2045 Exclusions and overlapping application.

732.2055 Valuation of the elective estate.

732.2065 Amount of the elective share.

732.2075 Sources from which elective share payable; abatement.

732.2085 Liability of direct recipients and beneficiaries.

732.2095 Valuation of property used to satisfy elective share.

732.2105 Effect of election on other interests.

732.2115 Protection of payors and other third parties.

732.2125 Right of election; by whom exercisable.

732.2135 Time of election; extensions; withdrawal.

732.2145 Order of contribution; personal representative's duty to collect contribution.

732.2155 Effective date; effect of prior waivers; transition rules.

732.216 Short title.

732.217 Application.

732.218 Rebuttable presumptions.

732.219 Disposition upon death.

732.221 Perfection of title of personal representative or beneficiary.

732.222 Purchaser for value or lender.

732.223 Perfection of title of surviving spouse.

732.224 Creditor's rights.

732.225 Acts of married persons.

732.226 Limitations on testamentary disposition.

732.227 Homestead defined.

732.228 Uniformity of application and construction.

732.201 Right to elective share.--The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.

History.--s. 1, ch. 74-106; s. 13, ch. 75-220; s. 1, ch. 99-343.

Note.--Created from former s. 731.34.

732.2025 Definitions.--As used in ss. 732.2025-732.2155, the term:

(1) "Direct recipient" means the decedent's probate estate and any other person who receives property included in the elective estate by transfer from the decedent, including transfers described in s. 732.2035(8), by right of survivorship, or by beneficiary designation under a governing instrument. For this purpose, a beneficiary of an insurance policy on the decedent's life, the net cash surrender value of which is included in the elective estate, is treated as having received property included in the elective estate. In the case of property held in trust, "direct recipient" includes the trustee but excludes the beneficiaries of the trust.

(2) "Elective share trust" means a trust where:

(a) The surviving spouse is entitled for life to the use of the property or to all of the income payable at least as often as annually;

(b) The trust is subject to the provisions of 1s. 738.12 or the surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time; and

(c) During the spouse's life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.

(3) "General power of appointment" means a power of appointment under which the holder of the power, whether or not the holder has the capacity to exercise it, has the power to create a present or future interest in the holder, the holder's estate, or the creditors of either. The term includes a power to consume or invade the principal of a trust, but only if the power is not limited by an ascertainable standard relating to the holder's health, education, support, or maintenance.

(4) "Governing instrument" means a deed; will; trust; insurance or annuity policy; account with payable-on-death designation; security registered in beneficiary form (TOD); pension, profit-sharing, retirement, or similar benefit plan; an instrument creating or exercising a power of appointment or a power of attorney; or a dispositive, appointive, or nominative instrument of any similar type.

(5) "Payor" means an insurer, business entity, employer, government, governmental agency or subdivision, or any other person, other than the decedent's personal representative or a trustee of a trust created by the decedent, authorized or obligated by law or a governing instrument to make payments.

(6) "Person" includes an individual, trust, estate, partnership, association, company, or corporation.

(7) "Probate estate" means all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia.

(8) "Qualifying special needs trust" or "supplemental needs trust" means a trust established for an ill or disabled surviving spouse with court approval before or after a decedent's death, if, commencing on the decedent's death:

(a) The income and principal are distributable to or for the benefit of the spouse for life in the discretion of one or more trustees less than half of whom are ineligible family trustees. For purposes of this paragraph, ineligible family trustees include the decedent's grandparents and any descendants of the decedent's grandparents who are not also descendants of the surviving spouse; and

(b) During the spouse's life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.

The requirement for court approval shall not apply if the aggregate value of all property in all qualifying special needs trusts for the spouse is less than $100,000. For purposes of this subsection, value is determined on the "applicable valuation date" as defined in s. 732.2095(1)(a).

(9) "Revocable trust" means a trust that is includable in the elective estate under s. 732.2035(4).

(10) "Transfer in satisfaction of the elective share" means an irrevocable transfer by the decedent to an elective share trust.

(11) "Transfer tax value" means the value the interest would have for purposes of the United States estate and gift tax laws if it passed without consideration to an unrelated person on the applicable valuation date.

History.--s. 2, ch. 99-343; s. 19, ch. 2001-226; s. 2, ch. 2002-82.

1Note.--Repealed by s. 2, ch. 2002-42.

732.2035 Property entering into elective estate.--Except as provided in s. 732.2045, the elective estate consists of the sum of the values as determined under s. 732.2055 of the following property interests:

(1) The decedent's probate estate.

(2) The decedent's ownership interest in accounts or securities registered in "Pay On Death," "Transfer On Death," "In Trust For," or coownership with right of survivorship form. For this purpose, "decedent's ownership interest" means, in the case of accounts or securities held in tenancy by the entirety, one-half of the value of the account or security, and in all other cases, that portion of the accounts or securities which the decedent had, immediately before death, the right to withdraw or use without the duty to account to any person.

(3) The decedent's fractional interest in property, other than property described in subsection (2) or subsection (7), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety. For this purpose, "decedent's fractional interest in property" means the value of the property divided by the number of tenants.

(4) That portion of property, other than property described in subsection (2), transferred by the decedent to the extent that at the time of the decedent's death the transfer was revocable by the decedent alone or in conjunction with any other person. This subsection does not apply to a transfer that is revocable by the decedent only with the consent of all persons having a beneficial interest in the property.

(5)(a) That portion of property, other than property described in subsection (3), subsection (4), or subsection (7), transferred by the decedent to the extent that at the time of the decedent's death:

1. The decedent possessed the right to, or in fact enjoyed the possession or use of, the income or principal of the property; or

2. The principal of the property could, in the discretion of any person other than the spouse of the decedent, be distributed or appointed to or for the benefit of the decedent.

In the application of this subsection, a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement shall be treated as a right to that portion of the income of the property necessary to equal the annuity, unitrust, or other payment.

(b) The amount included under this subsection is:

1. With respect to subparagraph (a)1., the value of the portion of the property to which the decedent's right or enjoyment related, to the extent the portion passed to or for the benefit of any person other than the decedent's probate estate; and

2. With respect to subparagraph (a)2., the value of the portion subject to the discretion, to the extent the portion passed to or for the benefit of any person other than the decedent's probate estate.

1. The property could be distributed to or for the benefit of the decedent only with the consent of all persons having a beneficial interest in the property; or

2. The income or principal of the property could be distributed to or for the benefit of the decedent only through the exercise or in default of an exercise of a general power of appointment held by any person other than the decedent; or

3. The income or principal of the property is or could be distributed in satisfaction of the decedent's obligation of support; or

4. The decedent had a contingent right to receive principal, other than at the discretion of any person, which contingency was beyond the control of the decedent and which had not in fact occurred at the decedent's death.

(6) The decedent's beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent's life.

(7) The value of amounts payable to or for the benefit of any person by reason of surviving the decedent under any public or private pension, retirement, or deferred compensation plan, or any similar arrangement, other than benefits payable under the federal Railroad Retirement Act or the federal Social Security System. In the case of a defined contribution plan as defined in s. 414(i) of the Internal Revenue Code of 1986, as amended, this subsection shall not apply to the excess of the proceeds of any insurance policy on the decedent's life over the net cash surrender value of the policy immediately before the decedent's death.

(8) Property that was transferred during the 1-year period preceding the decedent's death as a result of a transfer by the decedent if the transfer was either of the following types:

(a) Any property transferred as a result of the termination of a right or interest in, or power over, property that would have been included in the elective estate under subsection (4) or subsection (5) if the right, interest, or power had not terminated until the decedent's death.

(b) Any transfer of property to the extent not otherwise included in the elective estate, made to or for the benefit of any person, except:

1. Any transfer of property for medical or educational expenses to the extent it qualifies for exclusion from the United States gift tax under s. 2503(e) of the Internal Revenue Code, as amended; and

2. After the application of subparagraph (b)1., the first $10,000 of property transferred to or for the benefit of each donee during the 1-year period, but only to the extent the transfer qualifies for exclusion from the United States gift tax under s. 2503(b) or (c) of the Internal Revenue Code, as amended.

1. A "termination" with respect to a right or interest in property occurs when the decedent transfers or relinquishes the right or interest, and, with respect to a power over property, a termination occurs when the power terminates by exercise, release, lapse, default, or otherwise.

2. A distribution from a trust the income or principal of which is subject to subsection (4), subsection (5), or subsection (9) shall be treated as a transfer of property by the decedent and not as a termination of a right or interest in, or a power over, property.

(d) Notwithstanding anything in paragraph (c) to the contrary:

1. A "termination" with respect to a right or interest in property does not occur when the right or interest terminates by the terms of the governing instrument unless the termination is determined by reference to the death of the decedent and the court finds that a principal purpose for the terms of the instrument relating to the termination was avoidance of the elective share.

2. A distribution from a trust is not subject to this subsection if the distribution is required by the terms of the governing instrument unless the event triggering the distribution is determined by reference to the death of the decedent and the court finds that a principal purpose of the terms of the governing instrument relating to the distribution is avoidance of the elective share.

(9) Property transferred in satisfaction of the elective share.

History.--s. 15, ch. 75-220; s. 3, ch. 99-343; s. 20, ch. 2001-226.

Note.--Former s. 732.206.

732.2045 Exclusions and overlapping application.--

(1) EXCLUSIONS.--Section 732.2035 does not apply to:

(a) Except as provided in s. 732.2155(4), any transfer of property by the decedent to the extent the transfer is irrevocable before the effective date of this subsection or after that date but before the date of the decedent's marriage to the surviving spouse.

(b) Any transfer of property by the decedent to the extent the decedent received adequate consideration in money or money's worth for the transfer.

(c) Any transfer of property by the decedent made with the written consent of the decedent's spouse. For this purpose, spousal consent to split-gift treatment under the United States gift tax laws does not constitute written consent to the transfer by the decedent.

(d) The proceeds of any policy of insurance on the decedent's life in excess of the net cash surrender value of the policy whether payable to the decedent's estate, a trust, or in any other manner.

(e) Any policy of insurance on the decedent's life maintained pursuant to a court order.

(f) The decedent's one-half of the property to which ss. 732.216-732.228 apply and real property that is community property under the laws of the jurisdiction where it is located.

(g) Property held in a qualifying special needs trust on the date of the decedent's death.

(h) Property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment.

(i) Property which constitutes the protected homestead of the decedent whether held by the decedent or by a trust at the decedent's death.

(2) OVERLAPPING APPLICATION.--If s. 732.2035(1) and any other subsection of s. 732.2035 apply to the same property interest, the amount included in the elective estate under other subsections is reduced by the amount included under subsection (1). In all other cases, if more than one subsection of s. 732.2035 applies to a property interest, only the subsection resulting in the largest elective estate shall apply.

History.--s. 4, ch. 99-343; s. 21, ch. 2001-226.

732.2055 Valuation of the elective estate.--For purposes of s. 732.2035, "value" means:

(1) In the case of any policy of insurance on the decedent's life includable under s. 732.2035(4), (5), or (6), the net cash surrender value of the policy immediately before the decedent's death.

(2) In the case of any policy of insurance on the decedent's life includable under s. 732.2035(8), the net cash surrender value of the policy on the date of the termination or transfer.

(3) In the case of amounts includable under s. 732.2035(7), the transfer tax value of the amounts on the date of the decedent's death.

(4) In the case of other property included under s. 732.2035(8), the fair market value of the property on the date of the termination or transfer, computed after deducting any mortgages, liens, or security interests on the property as of that date.

(5) In the case of all other property, the fair market value of the property on the date of the decedent's death, computed after deducting from the total value of the property:

(a) All claims paid or payable from the elective estate; and

(b) To the extent they are not deducted under paragraph (a), all mortgages, liens, or security interests on the property.

History.--s. 5, ch. 99-343; s. 22, ch. 2001-226.

732.2065 Amount of the elective share.--The elective share is an amount equal to 30 percent of the elective estate.

History.--s. 15, ch. 75-220; s. 1, ch. 81-27; s. 6, ch. 99-343.

Note.--Former s. 732.207.

732.2075 Sources from which elective share payable; abatement.--

(1) Unless otherwise provided in the decedent's will or, in the absence of a provision in the decedent's will, in a trust referred to in the decedent's will, the following are applied first to satisfy the elective share:

(a) To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of insurance on the decedent's life if, at the time of decedent's death, the policy was owned by any person other than the surviving spouse.

(b)

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