Restrictions on Power of Testation

Question 1

Florida’s elective share statute

Answer 1

The elective share statute gives the SS the election to take a statutory share of the estate in lieu of taking under the decedent’s will.

In Florida, the elective share is 30% of the decedent’s elective estate. The elective share is in addition to the spouse’s right to exempt property, family allowance, and homestead.

Question 2

Property subject to the elective share election:

Answer 2

The elective estate consists of the decedent’s probate assets and various nonprobate assets, such as:

1. The decedent’s interest in POD and survivorship accounts;
2. Revocable trusts;
3. Irrevocable transfers to the extent that the decedent retained a right to income or principal;
4. The net cash surrender value of the decedent’s life insurance;
5. Death benefits from a pension; or
6. Property transferred within 1 year before death or in satisfaction of the elective share.

Question 3

Pretermitted child statute

Answer 3

A child omitted from a will who was born or adopted after the will’s execution is entitled to take a share equal to his intestate share had the testator died intestate, unless he received an advancement equal to his intestate share, the omission was intentional, or the testator had other children and left most of his estate to the other parent of the omitted child.

Question 4

Homestead

Answer 4

If held as TBE or JTROS, it passes by survivorship. If not, it is not subject to devise if the owner is survived by a spouse or minor child, but it may be devised to the spouse in fee simple absolute if there is no minor child.

If improperly devised, it descends as intestate property, except that if the decedent is survived by a spouse and 1 or more descendants, the spouse takes a life estate, with a vested remainder to descendants surviving the decedent’s death, per stirpes.

In lieu of a life estate, w/in 6 months of the decedent’s death the spouse may elect to take an undivided 1/2 interest in the homestead as a tenant in common with descendants surviving the decedent’s death, per stirpes.

Homestead property not specifically devised generally passes to the residuary as undisposed-of property.

Question 5

Spouse may disclaim or waive homestead rights

Answer 5

If properly devised, a disclaimed interest in the homestead passes as though the spouse predeceased the decedent. If a SS waives homestead rights and there are no minor children, the property passes according to the decedent’s will.

Question 6

Inter vivos transfer of homestead property

Answer 6

The transfer of an irrevocable interest in homestead property during the owner’s lifetime will not be considered a devise of the interest even if the transferor retains a separate interest in the property.

Question 7

Family allowance

Answer 7

Is in addition to the amount passing by will, intestacy, elective share, or homestead.

Amount = up to $18,000 to the SS and lineal heirs who were receiving or owed support by the decedent. The spouse does not have to show need.

Must be petitioned for/not automatic.