In 2013, a committee in Florida looked at the state’s elective share laws to make them fairer for surviving spouses. The laws had not been changed much since 1999. The changes made in 2016 and 2017 aim to protect surviving spouses and make it easier to resolve disputes over the elective share. Before 1999, a surviving spouse could only get 30% of the probate assets, which meant they could be left with very little if the deceased had assets outside of probate. In 1999, the law was changed to include almost all of the deceased’s assets in the elective share calculation, making it fairer for surviving spouses. For a long time, many legal experts thought that the elective share guaranteed that a surviving spouse would get at least a certain amount of their partner’s stuff when they pass away. In Florida, lawyers often told surviving spouses that they should definitely make this election just to be safe. If it turned out that the deceased person didn’t leave the surviving spouse enough, then the spouse would still get what they were supposed to. But if the deceased person left them more than they were supposed to, then the spouse would still get that extra stuff. This seemed like a fair way to make sure that surviving spouses were taken care of, especially since it can take a long time after someone dies to figure out how much they had. In December 2015, a court case called Richardson v. Perez changed the rules for how much a surviving spouse can inherit if they elect to take a share of their deceased spouse’s estate. The court said that the surviving spouse couldn’t receive more than 30 percent of the estate, even if they were supposed to get more under the will. This surprised a lot of people, so the law was quickly changed in 2016 to make it clear that the surviving spouse can still receive their full inheritance, even if they elect to take a share. The law used to say that a surviving spouse had to decide if they wanted to inherit from their deceased spouse within six months. If they needed more time, they could ask the court for an extension. Now, they have even more time to ask for an extension if there is a dispute over how much they should inherit. This change helps protect the rights of the surviving spouse in certain situations. In the past, the way a married couple owned their house could affect how much the surviving spouse would get if the other person died. If they owned the house together, the surviving spouse might get less than if the house was owned just by the person who died. But now, the law has changed to make things more fair for the surviving spouse. If the surviving spouse gets a life estate or a half interest in the house, they will get some of the value counted in their share. But if they waived their rights to the house, they won’t get anything from it when the other person dies. Under new laws, if a husband dies and tries to leave all his money and house to his adult child from a previous marriage, his wife will still get a share of his assets. Before, the wife would get a certain amount based on whether the house was owned only by the husband or by both the husband and wife. Now, the wife will get the same share of assets regardless of how the house is owned. The new laws aim to make sure that surviving spouses get a fair share of their deceased spouse’s assets, no matter the circumstances. In the past, surviving spouses didn’t have a clear right to get their legal fees and costs covered when they claimed their elective share of their deceased spouse’s estate. This made it hard for them to fight for what they were entitled to. The personal representative of the estate could use the threat of a long and expensive legal battle to pressure the spouse into settling for less. The personal representative had estate money to fund the legal battle, while the surviving spouse often didn’t. As the legal costs went up, the spouse’s share of the estate would go down. This made it easier for the estate to win by dragging out the legal process. If there’s a disagreement about a deceased person’s property that a surviving spouse has a right to, the court can decide to make the person causing the dispute pay for the legal costs and attorney fees. This rule also applies to other people involved in the disagreement, not just the surviving spouse. The same rule applies to other legal cases involving wills and trusts. In court cases about inheritance, the general rule is that the person who wins has the right to get their legal fees and costs paid by the losing party. However, the court can decide to split the costs between the parties or make the losing party pay all the costs. This law applies to cases started after July 1, 2017, no matter when the person died. So, if someone’s spouse died before July 1, 2017, they can still ask for their legal fees to be paid if they start their case after that date. When a surviving spouse has to fight for their share of an estate, they might have to wait a long time to get their money. But under the old law, the estate could keep any extra money made from the surviving spouse’s share while they were waiting. This wasn’t fair to the surviving spouse. It wasn’t until 90 days after a decision was made that the spouse could start earning interest on the money they were owed. Some cases lasted for four or more years, and this was really unfair to the surviving spouse. If a spouse dies and doesn’t leave enough for their partner, the surviving spouse can claim a share of the estate. If they don’t get the money within two years, the estate has to pay them interest. A proposed sliding scale to determine the amount owed was rejected, but some people think it should be reconsidered. The committee asked lawyers around the state for their opinion on a sliding scale for inheritance, and most lawyers liked the idea. They think that the longer someone was married to the person who died, the more of their stuff the spouse should get. The committee proposed that if someone was married for less than 5 years, they should get 10% of the stuff. If they were married for 5-15 years, they should get 20%, 15-25 years should get 30%, and 25 years or more should get 40%. But in 2017, the government didn’t like the sliding scale and took it out of the bill. They thought the spouse should get 50% of the stuff, or the same as in a divorce. But the committee thinks that’s not fair because the sliding scale includes all the dead person’s stuff, not just the stuff they had when they got married, and it’s not fair to compare it to what someone gets in a divorce. The committee supports a sliding scale for the elective share in Florida, which gives more assets to the surviving spouse in longer marriages. The recent amendments to the elective share laws provide more protections for surviving spouses, but there may still be further changes in the future to address any remaining unfairness. If someone doesn’t file a petition to figure out how much a spouse gets from an estate, the spouse can ask for the estate to pay for their lawyer fees. There are laws in Florida that deal with this issue. The authors of this article are experts in estate and succession planning. They have received awards and have leadership positions in the legal community.
Source: https://www.floridabar.org/the-florida-bar-journal/recent-amendments-bring-important-changes-to-floridas-elective-share/
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