2023 Florida Statutes › Title XLII - Estates and Trusts › Chapter 732 - Probate Code: Intestate Succession and Wills › Part II - Elective Share of Surviving Spouse; Rights in Community Property (Ss. 732.201-732.228) › 732.2035 - Property entering into elective estate.

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 interest in property which constitutes the protected homestead of the decedent.
(3) The decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership 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.
(4) The decedent’s fractional interest in property, other than property described in subsection (3) or subsection (8), 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.
(5) That portion of property, other than property described in subsections (2) and (3), 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.
(6)(a) That portion of property, other than property described in subsection (2), subsection (4), subsection (5), or subsection (8), 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.
(c) This subsection does not apply to any property if the decedent’s only interests in the property are that:
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.
(7) The decedent’s beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent’s life.
(8) 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.
(9) 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 (5) or subsection (6) 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 1., the first annual exclusion amount 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. For purposes of this subparagraph, the term “annual exclusion amount” means the amount of one annual exclusion under s. 2503(b) or (c) of the Internal Revenue Code, as amended.
(c) Except as provided in paragraph (d), for purposes of this subsection:
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 (5), subsection (6), or subsection (10) 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.
(10) Property transferred in satisfaction of the elective share.
History.—s. 15, ch. 75-220; s. 3, ch. 99-343; s. 20, ch. 2001-226; s. 10, ch. 2007-74; s. 2, ch. 2017-121.
Note.—Former s. 732.206.