The surviving spouse of a Florida resident who passes away has the right to a percentage of the deceased person’s assets, called the elective share. This is meant to make sure the surviving spouse has enough to live on and also recognizes their contributions to the marriage. However, there have been problems with the current law, and changes have been proposed but not adopted. These changes are meant to make the law fairer, but they also create new issues. The current Florida elective share law allows one spouse to disinherit the other spouse by putting all their assets in a trust. This is unfair because it means the surviving spouse may not get what they deserve. For example, in one case, the surviving spouse only received a life estate in their home and some income from a trust, even though the estate was worth over $7 million. The court said this was unfair and asked the government to change the law. It’s also unfair because a divorcing spouse can get a fair share of assets, but a surviving spouse might not. This doesn’t make sense and the law needs to be changed. In many states, including New York, there is a law called the augmented estate provision that helps protect a surviving spouse from being unfairly disinherited by their deceased spouse. This law gives the surviving spouse the right to a certain percentage of the deceased spouse’s assets, including things like property and money that were not included in a will. This helps make sure that the surviving spouse is taken care of after their spouse passes away. For example, in New York, the surviving spouse can claim an amount equal to at least one-third of the deceased spouse’s estate. This helps prevent the surviving spouse from being left with nothing. The augmented estate method changes the way a surviving spouse can inherit property from a deceased spouse. It prevents one spouse from easily disinheriting the other. But it also has its own problems, such as giving the same share to spouses in short and long marriages and giving a share to a spouse who may not need it. This can lead to unfair outcomes, especially in second marriages where each spouse already has their own assets and children. Florida divorce law and elective share law have different approaches to determining entitlement to support. In a divorce, the court considers the length of the marriage and the financial situation of both parties. But elective share law in Florida treats all marriages the same, regardless of length, and doesn’t consider the surviving spouse’s assets. This can lead to unfair outcomes, especially in multiple marriage situations. A prenuptial agreement can waive the right to elective share, but it must be fair and may require disclosure of assets. The Uniform Probate Code has an accrual method that views marriage as an economic partnership, similar to how assets are divided in a divorce. The accrual method of the Uniform Probate Code gives a surviving spouse a percentage of the combined assets of both spouses when one spouse dies. The percentage increases with the length of the marriage, up to a maximum of 50 percent. For example, if the spouses were married for 30 years, the surviving spouse would get half of the combined assets. This method is only used in a few states because it is complicated and can lead to disputes over the value of assets. Community property law is a system in which married couples share ownership of property acquired during their marriage, regardless of how it is titled. In this system, each spouse automatically owns 50 percent of the community property. This eliminates the need for an elective share, as the surviving spouse already owns a portion of the property. However, transitioning from an elective share system to a community property system can be complicated, as it may lead to issues with keeping track of which assets belong to each spouse. Additionally, adopting a community property system would require getting rid of Florida’s current divorce property distribution system, which is unlikely to happen. The Florida Bar has proposed a new law that would allow a surviving spouse to claim a share of the deceased spouse’s assets, including things like property and retirement accounts. The amount of the share would depend on how long the couple was married, ranging from 10-40% of the total estate. The new law doesn’t consider how much money the surviving spouse already has, which is different from the current law and could mean a wealthier spouse could claim part of the deceased spouse’s assets. The proposed law aims to make things less complicated, but it could mean a higher elective share for the surviving spouse in some cases. The Florida Bar proposed a compromise between two methods for the elective share, but the Legislature hasn’t adopted it yet. The current law allows people to easily avoid the elective share. There have been court cases where surviving spouses didn’t get the elective share because the property wasn’t part of the estate or was transferred before the person died. The law is complicated, and it’s hard to find a fair solution that everyone agrees on. Abraham M. Mora and Sanford J. Schlesinger are lawyers at a law firm in different offices. They both have impressive academic backgrounds and have written extensively on estate planning and trusts and estates. They are experts in their field and are dedicated to serving the public and improving the justice system.
Source: https://www.floridabar.org/the-florida-bar-journal/reforming-floridas-elective-share-law-is-the-cure-worse-than-the-disease/
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