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Florida Surviving Spouse’s Elective Share Earns Interest, Not Charged Fees

Written by Anya Van Veen • January 22nd, 2016

Probate Litigation,  Probate Administration,  

A surviving spouse’s elective share in Florida is often the subject of litigation in the Florida Probate Court.  Under Florida statutes, a Florida surviving spouse has the right to a share of the elective estate of the decedent.  A surviving spouse’s elective share is defined by Florida statute as an amount equal to 30 percent of the elective estate.

In Blackburn v. Boulis, the Florida Fourth District Court of Appeal considered two appeals involving the payment of a surviving spouse’s elective share.  In the first appeal, the personal representatives of the estate of Gus Boulis challenged the Florida probate court’s orders directing the personal representatives to pay interest on forty percent of the court-determined minimum value of the surviving spouse’s elective share from the initial valuation date.  The surviving spouse argued that the personal representatives should have had to pay interest on a larger percentage.

In the second appeal, the surviving spouse argued that the personal representatives should not have been allowed to deduct attorneys’ fees for litigating estate claims from the surviving spouse’s elective share.

It Was Within The Florida Probate Court’s Discretion To Order The Estate To Pay Interest On Forty Percent Of The Value Of The Minimum Elective Share

In this case, the surviving spouse’s elective share was not immediately distributed when the Florida probate court ordered distribution.  Because of the delay in distribution, a dispute arose as to the payment of interest.  A Florida probate court, as opposed to the Florida appellate court, is in the best position to measure the fairness and logic of a particular distribution scheme. The Florida probate court “is guided by equitable principles” and will only be reversed as to an issue of distribution if the Florida probate court has abused its discretion. 

With these guiding principles in mind, the Florida appellate court determined that the Florida probate court was within its authority to order the payment of interest on forty percent of the value of the minimum elective share, and to exempt from interest-assessment sixty percent of the value of the minimum elective share.  As stated by the Florida appellate court:

As implied by the probate court's orders, it would be inequitable for Spouse to be denied the opportunity for a reasonable return on her court-determined minimum elective share. However, it would likewise have been inequitable for Spouse to enjoy a windfall of interest on a portion of the value of her minimum elective share which, due to taxes, she would not be entitled to retain.

The Florida Probate Court Erred When It Charged A Proportionate Amount Of The Attorneys’ Fees Incurred By The Personal Representatives Against The Elective Share

The Florida elective share is “purely a creature of statute created by Florida’s Legislature as a replacement for the common law doctrine of “dower and curtesy.”   The 1998 version of the surviving spouse’s elective share statute was applicable to this appeal.  The 1998 statute provided that:

732.207 Amount of the elective share.--The elective share shall consist of an amount equal to 30 percent of the fair market value, on the date of death, of all assets referred to in s. 732.206, computed after deducting from the total value of the assets:

(1) All valid claims against the estate paid or payable from the estate; and

(2) All mortgages, liens, or security interests on the assets.

Attorneys’ fees are not one of the enumerated deductions in the statute. Because attorneys’ fees are not one of the types of expenses or costs which the probate court is to deduct, it was error for the Florida probate court to deduct attorneys’ fees from the value of the surviving spouse’s elective share.

Anya Van Veen is a Florida probate attorney.