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) › 732.2025 - Definitions.

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(9), 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 under which:
(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 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.
As used in this subsection, the term “income” has the same meaning as that provided in s. 643(b) of the Internal Revenue Code, as amended, and regulations adopted under that section.
(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(5).
(10) “Transfer in satisfaction of the elective share” means an irrevocable transfer by the decedent during life 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; s. 151, ch. 2004-5; s. 9, ch. 2007-74; s. 3, ch. 2009-115; s. 1, ch. 2017-121.