Florida Senate - 2017                                     SB 724
       
       
        
       By Senator Passidomo
       
       28-00984-17                                            2017724__
    1                        A bill to be entitled                      
    2         An act relating to estates; amending s. 732.2025,
    3         F.S.; conforming cross-references; amending s.
    4         732.2035, F.S.; providing that a decedent’s property
    5         interest in the protected homestead is included in the
    6         elective estate; amending s. 732.2045, F.S.; revising
    7         the circumstances under which the decedent’s property
    8         interest in the protected homestead is excluded from
    9         the elective estate; amending s. 732.2055, F.S.;
   10         providing for the valuation of the decedent’s
   11         protected homestead under certain circumstances;
   12         amending s. 732.2065, F.S.; providing elective share
   13         percentages as determined by the length of the
   14         surviving spouse’s marriage to the decedent; amending
   15         s. 732.2075, F.S.; conforming cross-references;
   16         amending s. 732.2085, F.S.; requiring the payment of
   17         interest on any unpaid portion of a person’s required
   18         contribution toward the elective share with respect to
   19         certain property; amending s. 732.2095, F.S.; revising
   20         provisions relating to the valuation of a surviving
   21         spouse’s interest in property to include protected
   22         homestead; conforming cross-references; amending s.
   23         732.2115, F.S.; conforming a cross-reference; amending
   24         s. 732.2135, F.S.; revising the period within which a
   25         specified person may petition the court for an
   26         extension of time for making an election; removing a
   27         provision authorizing assessment of attorney fees and
   28         costs if an election is made in bad faith; amending s.
   29         732.2145, F.S.; requiring the payment of interest on
   30         any unpaid portion of a person’s required contribution
   31         toward the elective share after a certain date;
   32         creating s. 732.2151, F.S.; providing for the award of
   33         fees and costs in certain elective share proceedings;
   34         providing that a court may direct payment from certain
   35         sources; providing applicability; amending s. 738.606,
   36         F.S.; providing that a surviving spouse may require a
   37         trustee of a marital or elective share trust to make
   38         property productive of income; providing
   39         applicability; providing an effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Subsections (1) and (9) of section 732.2025,
   44  Florida Statutes, are amended to read:
   45         732.2025 Definitions.—As used in ss. 732.2025-732.2155, the
   46  term:
   47         (1) “Direct recipient” means the decedent’s probate estate
   48  and any other person who receives property included in the
   49  elective estate by transfer from the decedent, including
   50  transfers described in s. 732.2035(9) s. 732.2035(8), by right
   51  of survivorship, or by beneficiary designation under a governing
   52  instrument. For this purpose, a beneficiary of an insurance
   53  policy on the decedent’s life, the net cash surrender value of
   54  which is included in the elective estate, is treated as having
   55  received property included in the elective estate. In the case
   56  of property held in trust, “direct recipient” includes the
   57  trustee but excludes the beneficiaries of the trust.
   58         (9) “Revocable trust” means a trust that is includable in
   59  the elective estate under s. 732.2035(5) s. 732.2035(4).
   60         Section 2. Section 732.2035, Florida Statutes, is amended
   61  to read:
   62         732.2035 Property entering into elective estate.—Except as
   63  provided in s. 732.2045, the elective estate consists of the sum
   64  of the values as determined under s. 732.2055 of the following
   65  property interests:
   66         (1) The decedent’s probate estate.
   67         (2) The decedent’s interest in property which constitutes
   68  the protected homestead of the decedent.
   69         (3) The decedent’s ownership interest in accounts or
   70  securities registered in “Pay On Death,” “Transfer On Death,”
   71  “In Trust For,” or coownership with right of survivorship form.
   72  For this purpose, “decedent’s ownership interest” means, in the
   73  case of accounts or securities held in tenancy by the entirety,
   74  one-half of the value of the account or security, and in all
   75  other cases, that portion of the accounts or securities which
   76  the decedent had, immediately before death, the right to
   77  withdraw or use without the duty to account to any person.
   78         (4)(3) The decedent’s fractional interest in property,
   79  other than property described in subsection (3)(2) or subsection
   80  (8)(7), held by the decedent in joint tenancy with right of
   81  survivorship or in tenancy by the entirety. For this purpose,
   82  “decedent’s fractional interest in property” means the value of
   83  the property divided by the number of tenants.
   84         (5)(4) That portion of property, other than property
   85  described in subsection (2) and subsection (3), transferred by
   86  the decedent to the extent that at the time of the decedent’s
   87  death the transfer was revocable by the decedent alone or in
   88  conjunction with any other person. This subsection does not
   89  apply to a transfer that is revocable by the decedent only with
   90  the consent of all persons having a beneficial interest in the
   91  property.
   92         (6)(a)(5)(a) That portion of property, other than property
   93  described in subsection (2)(3), subsection (4), subsection (5),
   94  or subsection (8)(7), transferred by the decedent to the extent
   95  that at the time of the decedent’s death:
   96         1. The decedent possessed the right to, or in fact enjoyed
   97  the possession or use of, the income or principal of the
   98  property; or
   99         2. The principal of the property could, in the discretion
  100  of any person other than the spouse of the decedent, be
  101  distributed or appointed to or for the benefit of the decedent.
  102  
  103  In the application of this subsection, a right to payments under
  104  a commercial or private annuity, an annuity trust, a unitrust,
  105  or a similar arrangement shall be treated as a right to that
  106  portion of the income of the property necessary to equal the
  107  annuity, unitrust, or other payment.
  108         (b) The amount included under this subsection is:
  109         1. With respect to subparagraph (a)1., the value of the
  110  portion of the property to which the decedent’s right or
  111  enjoyment related, to the extent the portion passed to or for
  112  the benefit of any person other than the decedent’s probate
  113  estate; and
  114         2. With respect to subparagraph (a)2., the value of the
  115  portion subject to the discretion, to the extent the portion
  116  passed to or for the benefit of any person other than the
  117  decedent’s probate estate.
  118         (c) This subsection does not apply to any property if the
  119  decedent’s only interests in the property are that:
  120         1. The property could be distributed to or for the benefit
  121  of the decedent only with the consent of all persons having a
  122  beneficial interest in the property; or
  123         2. The income or principal of the property could be
  124  distributed to or for the benefit of the decedent only through
  125  the exercise or in default of an exercise of a general power of
  126  appointment held by any person other than the decedent; or
  127         3. The income or principal of the property is or could be
  128  distributed in satisfaction of the decedent’s obligation of
  129  support; or
  130         4. The decedent had a contingent right to receive
  131  principal, other than at the discretion of any person, which
  132  contingency was beyond the control of the decedent and which had
  133  not in fact occurred at the decedent’s death.
  134         (7)(6) The decedent’s beneficial interest in the net cash
  135  surrender value immediately before death of any policy of
  136  insurance on the decedent’s life.
  137         (8)(7) The value of amounts payable to or for the benefit
  138  of any person by reason of surviving the decedent under any
  139  public or private pension, retirement, or deferred compensation
  140  plan, or any similar arrangement, other than benefits payable
  141  under the federal Railroad Retirement Act or the federal Social
  142  Security System. In the case of a defined contribution plan as
  143  defined in s. 414(i) of the Internal Revenue Code of 1986, as
  144  amended, this subsection shall not apply to the excess of the
  145  proceeds of any insurance policy on the decedent’s life over the
  146  net cash surrender value of the policy immediately before the
  147  decedent’s death.
  148         (9)(8) Property that was transferred during the 1-year
  149  period preceding the decedent’s death as a result of a transfer
  150  by the decedent if the transfer was either of the following
  151  types:
  152         (a) Any property transferred as a result of the termination
  153  of a right or interest in, or power over, property that would
  154  have been included in the elective estate under subsection
  155  (5)(4) or subsection (6)(5) if the right, interest, or power had
  156  not terminated until the decedent’s death.
  157         (b) Any transfer of property to the extent not otherwise
  158  included in the elective estate, made to or for the benefit of
  159  any person, except:
  160         1. Any transfer of property for medical or educational
  161  expenses to the extent it qualifies for exclusion from the
  162  United States gift tax under s. 2503(e) of the Internal Revenue
  163  Code, as amended; and
  164         2. After the application of subparagraph 1., the first
  165  annual exclusion amount of property transferred to or for the
  166  benefit of each donee during the 1-year period, but only to the
  167  extent the transfer qualifies for exclusion from the United
  168  States gift tax under s. 2503(b) or (c) of the Internal Revenue
  169  Code, as amended. For purposes of this subparagraph, the term
  170  “annual exclusion amount” means the amount of one annual
  171  exclusion under s. 2503(b) or (c) of the Internal Revenue Code,
  172  as amended.
  173         (c) Except as provided in paragraph (d), for purposes of
  174  this subsection:
  175         1. A “termination” with respect to a right or interest in
  176  property occurs when the decedent transfers or relinquishes the
  177  right or interest, and, with respect to a power over property, a
  178  termination occurs when the power terminates by exercise,
  179  release, lapse, default, or otherwise.
  180         2. A distribution from a trust the income or principal of
  181  which is subject to subsection (5)(4), subsection (6)(5), or
  182  subsection (10)(9) shall be treated as a transfer of property by
  183  the decedent and not as a termination of a right or interest in,
  184  or a power over, property.
  185         (d) Notwithstanding anything in paragraph (c) to the
  186  contrary:
  187         1. A “termination” with respect to a right or interest in
  188  property does not occur when the right or interest terminates by
  189  the terms of the governing instrument unless the termination is
  190  determined by reference to the death of the decedent and the
  191  court finds that a principal purpose for the terms of the
  192  instrument relating to the termination was avoidance of the
  193  elective share.
  194         2. A distribution from a trust is not subject to this
  195  subsection if the distribution is required by the terms of the
  196  governing instrument unless the event triggering the
  197  distribution is determined by reference to the death of the
  198  decedent and the court finds that a principal purpose of the
  199  terms of the governing instrument relating to the distribution
  200  is avoidance of the elective share.
  201         (10)(9) Property transferred in satisfaction of the
  202  elective share.
  203         Section 3. Paragraph (i) of subsection (1) of section
  204  732.2045, Florida Statutes, is amended to read:
  205         732.2045 Exclusions and overlapping application.—
  206         (1) EXCLUSIONS.—Section 732.2035 does not apply to:
  207         (i) Property which constitutes the protected homestead of
  208  the decedent if the surviving spouse validly waived his or her
  209  homestead rights as provided under s. 732.702, or otherwise
  210  under applicable law, and such spouse did not receive any
  211  interest in the protected homestead upon the decedent’s death
  212  whether held by the decedent or by a trust at the decedent’s
  213  death.
  214         Section 4. Section 732.2055, Florida Statutes, is amended
  215  to read:
  216         732.2055 Valuation of the elective estate.—For purposes of
  217  s. 732.2035, “value” means:
  218         (1)(a)In the case of protected homestead:
  219         1.If the surviving spouse receives a fee simple interest,
  220  the fair market value of the protected homestead on the date of
  221  the decedent’s death.
  222         2.If the spouse takes a life estate as provided in s.
  223  732.401(1), or validly elects to take an undivided one-half
  224  interest as a tenant in common as provided in s. 732.401(2),
  225  one-half of the fair market value of the protected homestead on
  226  the date of the decedent’s death.
  227         3.If the surviving spouse validly waived his or her
  228  homestead rights as provided under s. 732.702 or otherwise under
  229  applicable law, but nevertheless receives an interest in the
  230  protected homestead, other than an interest described in s.
  231  732.401, including an interest in trust, the value of the
  232  spouse’s interest is determined as property interests that are
  233  not protected homestead.
  234         (b)For purposes of this subsection, the term “fair market
  235  value” means the net of the aggregate amount, as of the date of
  236  the decedent’s death, of all mortgages, liens, and security
  237  interests to which the protected homestead is subject and for
  238  which the decedent is liable, but only to the extent that such
  239  amount is not otherwise deducted as a claim paid or payable from
  240  the elective estate.
  241         (2) In the case of any policy of insurance on the
  242  decedent’s life includable under s. 732.2035(5), (6), or (7) s.
  243  732.2035(4), (5), or (6), the net cash surrender value of the
  244  policy immediately before the decedent’s death.
  245         (3)(2) In the case of any policy of insurance on the
  246  decedent’s life includable under s. 732.2035(9) s. 732.2035(8),
  247  the net cash surrender value of the policy on the date of the
  248  termination or transfer.
  249         (4)(3) In the case of amounts includable under s.
  250  732.2035(8) s. 732.2035(7), the transfer tax value of the
  251  amounts on the date of the decedent’s death.
  252         (5)(4) In the case of other property included under s.
  253  732.2035(9) s. 732.2035(8), the fair market value of the
  254  property on the date of the termination or transfer, computed
  255  after deducting any mortgages, liens, or security interests on
  256  the property as of that date.
  257         (6)(5) In the case of all other property, the fair market
  258  value of the property on the date of the decedent’s death,
  259  computed after deducting from the total value of the property:
  260         (a) All claims paid or payable from the elective estate;
  261  and
  262         (b) To the extent they are not deducted under paragraph
  263  (a), all mortgages, liens, or security interests on the
  264  property.
  265         Section 5. Section 732.2065, Florida Statutes, is amended
  266  to read:
  267         732.2065 Amount of the elective share.—The elective share
  268  to which a surviving spouse is entitled is determined based upon
  269  the number of years of the surviving spouse’s marriage to the
  270  decedent, determined as of the date of the decedent’s death, as
  271  follows:
  272         (1)If the decedent and the surviving spouse were last
  273  married to each other for less than 5 full years, the elective
  274  share is an amount equal to 10 percent of the elective estate.
  275         (2)If the decedent and the surviving spouse were last
  276  married to each other for at least 5 full years but less than 15
  277  full years, the elective share is an amount equal to 20 percent
  278  of the elective estate.
  279         (3)If the decedent and the surviving spouse were last
  280  married to each other for at least 15 full years but less than
  281  25 full years, the elective share is an amount equal to 30
  282  percent of the elective estate.
  283         (4)If the decedent and the surviving spouse were last
  284  married to each other for 25 full years or more, the elective
  285  share is an amount equal to 40 percent of the elective estate.
  286  is an amount equal to 30 percent of the elective estate.
  287         Section 6. Paragraph (b) of subsection (1), paragraph (b)
  288  of subsection (2), and paragraph (c) of subsection (3) of
  289  section 732.2075, Florida Statutes, are amended to read:
  290         732.2075 Sources from which elective share payable;
  291  abatement.—
  292         (1) Unless otherwise provided in the decedent’s will or, in
  293  the absence of a provision in the decedent’s will, in a trust
  294  referred to in the decedent’s will, the following are applied
  295  first to satisfy the elective share:
  296         (b) To the extent paid to or for the benefit of the
  297  surviving spouse, amounts payable under any plan or arrangement
  298  described in s. 732.2035(8) s. 732.2035(7).
  299         (2) If, after the application of subsection (1), the
  300  elective share is not fully satisfied, the unsatisfied balance
  301  shall be allocated entirely to one class of direct recipients of
  302  the remaining elective estate and apportioned among those
  303  recipients, and if the elective share amount is not fully
  304  satisfied, to the next class of direct recipients, in the
  305  following order of priority, until the elective share amount is
  306  satisfied:
  307         (b) Class 2.—Recipients of property interests, other than
  308  protected charitable interests, included in the elective estate
  309  under s. 732.2035(3), (4), or (7) s. 732.2035(2), (3), or (6)
  310  and, to the extent the decedent had at the time of death the
  311  power to designate the recipient of the property, property
  312  interests, other than protected charitable interests, included
  313  under s. 732.2035(6) and (8) s. 732.2035(5) and (7).
  314  
  315  For purposes of this subsection, a protected charitable interest
  316  is any interest for which a charitable deduction with respect to
  317  the transfer of the property was allowed or allowable to the
  318  decedent or the decedent’s spouse under the United States gift
  319  or income tax laws.
  320         (3) If, after the application of subsections (1) and (2),
  321  the elective share amount is not fully satisfied, the additional
  322  amount due to the surviving spouse shall be determined and
  323  satisfied as follows:
  324         (c) If there is more than one trust to which this
  325  subsection could apply, unless otherwise provided in the
  326  decedent’s will or, in the absence of a provision in the
  327  decedent’s will, in a trust referred to in the decedent’s will,
  328  the unsatisfied balance shall be apportioned pro rata to all
  329  such trusts in proportion to the value, as determined under s.
  330  732.2095(2)(f) s. 732.2095(2)(d), of the surviving spouse’s
  331  beneficial interests in the trusts.
  332         Section 7. Paragraph (a) of subsection (3) of section
  333  732.2085, Florida Statutes, is amended to read:
  334         732.2085 Liability of direct recipients and beneficiaries.—
  335         (3) If a person pays the value of the property on the date
  336  of a sale or exchange or contributes all of the property
  337  received, as provided in paragraph (2)(b):
  338         (a) No further contribution toward satisfaction of the
  339  elective share shall be required with respect to that property.
  340  However, if a person’s required contribution is not fully paid
  341  by 2 years after the date of the death of the decedent, such
  342  person must also pay interest at the statutory rate on any
  343  portion of the required contribution that remains unpaid.
  344         Section 8. Section 732.2095, Florida Statutes, is amended
  345  to read:
  346         732.2095 Valuation of property used to satisfy elective
  347  share.—
  348         (1) DEFINITIONS.—As used in this section, the term:
  349         (a) “Applicable valuation date” means:
  350         1. In the case of transfers in satisfaction of the elective
  351  share, the date of the decedent’s death.
  352         2. In the case of property held in a qualifying special
  353  needs trust on the date of the decedent’s death, the date of the
  354  decedent’s death.
  355         3. In the case of other property irrevocably transferred to
  356  or for the benefit of the surviving spouse during the decedent’s
  357  life, the date of the transfer.
  358         4. In the case of property distributed to the surviving
  359  spouse by the personal representative, the date of distribution.
  360         5. Except as provided in subparagraphs 1., 2., and 3., in
  361  the case of property passing in trust for the surviving spouse,
  362  the date or dates the trust is funded in satisfaction of the
  363  elective share.
  364         6. In the case of property described in s. 732.2035(2),
  365  (3), or (4) s. 732.2035(2) or (3), the date of the decedent’s
  366  death.
  367         7. In the case of proceeds of any policy of insurance
  368  payable to the surviving spouse, the date of the decedent’s
  369  death.
  370         8. In the case of amounts payable to the surviving spouse
  371  under any plan or arrangement described in s. 732.2035(8) s.
  372  732.2035(7), the date of the decedent’s death.
  373         9. In all other cases, the date of the decedent’s death or
  374  the date the surviving spouse first comes into possession of the
  375  property, whichever occurs later.
  376         (b) “Qualifying power of appointment” means a general power
  377  of appointment that is exercisable alone and in all events by
  378  the decedent’s spouse in favor of the spouse or the spouse’s
  379  estate. For this purpose, a general power to appoint by will is
  380  a qualifying power of appointment if the power may be exercised
  381  by the spouse in favor of the spouse’s estate without the
  382  consent of any other person.
  383         (c) “Qualifying invasion power” means a power held by the
  384  surviving spouse or the trustee of an elective share trust to
  385  invade trust principal for the health, support, and maintenance
  386  of the spouse. The power may, but need not, provide that the
  387  other resources of the spouse are to be taken into account in
  388  any exercise of the power.
  389         (2) Except as provided in this subsection, the value of
  390  property for purposes of s. 732.2075 is the fair market value of
  391  the property on the applicable valuation date.
  392         (a) If the surviving spouse has a life interest in property
  393  not in trust that entitles the spouse to the use of the property
  394  for life, including, without limitation, a life estate in
  395  protected homestead as provided in s. 732.401(1), the value of
  396  the spouse’s interest is one-half of the value of the property
  397  on the applicable valuation date.
  398         (b)If the surviving spouse elects to take an undivided
  399  one-half interest in protected homestead as a tenant in common
  400  as provided in s. 732.401(2), the value of the spouse’s interest
  401  is one-half of the value of the property on the applicable
  402  valuation date.
  403         (c)If the surviving spouse validly waived his or her
  404  homestead rights as provided in s. 732.702 or otherwise under
  405  applicable law but nevertheless receives an interest in
  406  protected homestead, other than an interest described in s.
  407  732.401, including, without limitation, an interest in trust,
  408  the value of the spouse’s interest is determined as property
  409  interests that are not protected homestead.
  410         (d)(b) If the surviving spouse has an interest in a trust,
  411  or portion of a trust, which meets the requirements of an
  412  elective share trust, the value of the spouse’s interest is a
  413  percentage of the value of the principal of the trust, or trust
  414  portion, on the applicable valuation date as follows:
  415         1. One hundred percent if the trust instrument includes
  416  both a qualifying invasion power and a qualifying power of
  417  appointment.
  418         2. Eighty percent if the trust instrument includes a
  419  qualifying invasion power but no qualifying power of
  420  appointment.
  421         3. Fifty percent in all other cases.
  422         (e)(c) If the surviving spouse is a beneficiary of a trust,
  423  or portion of a trust, which meets the requirements of a
  424  qualifying special needs trust, the value of the principal of
  425  the trust, or trust portion, on the applicable valuation date.
  426         (f)(d) If the surviving spouse has an interest in a trust
  427  that does not meet the requirements of either an elective share
  428  trust or a qualifying special needs trust, the value of the
  429  spouse’s interest is the transfer tax value of the interest on
  430  the applicable valuation date; however, the aggregate value of
  431  all of the spouse’s interests in the trust shall not exceed one
  432  half of the value of the trust principal on the applicable
  433  valuation date.
  434         (g)(e) In the case of any policy of insurance on the
  435  decedent’s life the proceeds of which are payable outright or to
  436  a trust described in paragraph (d)(b), paragraph (e)(c), or
  437  paragraph (f)(d), the value of the policy for purposes of s.
  438  732.2075 and paragraphs (d), (e), and (f) (b), (c), and (d) is
  439  the net proceeds.
  440         (h)(f) In the case of a right to one or more payments from
  441  an annuity or under a similar contractual arrangement or under
  442  any plan or arrangement described in s. 732.2035(8) s.
  443  732.2035(7), the value of the right to payments for purposes of
  444  s. 732.2075 and paragraphs (d), (e), and (f) (b), (c), and (d)
  445  is the transfer tax value of the right on the applicable
  446  valuation date.
  447         Section 9. Section 732.2115, Florida Statutes, is amended
  448  to read:
  449         732.2115 Protection of payors and other third parties.
  450  Although a property interest is included in the decedent’s
  451  elective estate under s. 732.2035(3)-(9) s. 732.2035(2)-(8), a
  452  payor or other third party is not liable for paying,
  453  distributing, or transferring the property to a beneficiary
  454  designated in a governing instrument, or for taking any other
  455  action in good faith reliance on the validity of a governing
  456  instrument.
  457         Section 10. Section 732.2135, Florida Statutes, is amended
  458  to read:
  459         732.2135 Time of election; extensions; withdrawal.—
  460         (1) Except as provided in subsection (2), the election must
  461  be filed on or before the earlier of the date that is 6 months
  462  after the date of service of a copy of the notice of
  463  administration on the surviving spouse, or an attorney in fact
  464  or guardian of the property of the surviving spouse, or the date
  465  that is 2 years after the date of the decedent’s death.
  466         (2) Within the period provided in subsection (1), or 40
  467  days after the date of termination of any proceeding which
  468  affects the amount the spouse is entitled to receive under s.
  469  732.2075(1), whichever is later, but no more than 2 years after
  470  the decedent’s death, the surviving spouse or an attorney in
  471  fact or guardian of the property of the surviving spouse may
  472  petition the court for an extension of time for making an
  473  election. For good cause shown, the court may extend the time
  474  for election. If the court grants the petition for an extension,
  475  the election must be filed within the time allowed by the
  476  extension.
  477         (3) The surviving spouse or an attorney in fact, guardian
  478  of the property, or personal representative of the surviving
  479  spouse may withdraw an election at any time within 8 months
  480  after the decedent’s death and before the court’s order of
  481  contribution.
  482         (4) A petition for an extension of the time for making the
  483  election or for approval to make the election shall toll the
  484  time for making the election.
  485         (5)If the court determines that an election is made or
  486  pursued in bad faith, the court may assess attorney’s fees and
  487  costs against the surviving spouse or the surviving spouse’s
  488  estate.
  489         Section 11. Subsection (1) of section 732.2145, Florida
  490  Statutes, is amended to read:
  491         732.2145 Order of contribution; personal representative’s
  492  duty to collect contribution.—
  493         (1) The court shall determine the elective share and
  494  contribution. Any amount of the elective share not satisfied
  495  within 2 years of the date of death of the decedent shall bear
  496  interest at the statutory rate until fully satisfied, even if an
  497  order of contribution has not yet been entered. Contributions
  498  shall bear interest at the statutory rate beginning 90 days
  499  after the order of contribution. The order is prima facie
  500  correct in proceedings in any court or jurisdiction.
  501         Section 12. Section 732.2151, Florida Statutes, is created
  502  to read:
  503         732.2151Award of fees and costs in elective share
  504  proceedings.—
  505         (1)The court may award taxable costs as in chancery
  506  actions, including attorney fees, in any proceeding under this
  507  part in which there is an objection to or dispute over:
  508         (a)The entitlement to or the amount of the elective share;
  509         (b)The property interests included in the elective estate,
  510  or its value; or
  511         (c)The satisfaction of the elective share.
  512         (2)When awarding taxable costs or attorney fees, the court
  513  may do one or more of the following:
  514         (a)Direct payment from the estate.
  515         (b)Direct payment from a party’s interest in the elective
  516  share or the elective estate.
  517         (c)Enter a judgement that can be satisfied from other
  518  property of the party.
  519         (3)In addition to any of the fees that may be awarded
  520  under subsections (1) and (2), if the personal representative
  521  does not file a petition to determine the amount of the elective
  522  share as required by the Florida Probate Rules, the electing
  523  spouse or the attorney in fact, guardian of the property, or
  524  personal representative of the electing spouse may be awarded
  525  from the estate reasonable costs, including attorney fees,
  526  incurred in connection with the preparation and filing of the
  527  petition.
  528         (4)This section applies to all proceedings commenced on or
  529  after July 1, 2017, without regard to the date of the decedent’s
  530  death.
  531         Section 13. Subsection (1) of section 738.606, Florida
  532  Statutes, is amended to read:
  533         738.606 Property not productive of income.—
  534         (1) If a marital deduction under the Internal Revenue Code
  535  or comparable law of any state is allowed for all or part of a
  536  trust, or if assets are transferred to a trust that satisfies
  537  the requirements of s. 732.2025(2)(a) and (c), and such assets
  538  have been used in whole or in part to satisfy an election by a
  539  surviving spouse under s. 732.2125 and the income of which must
  540  be distributed to the grantor’s spouse and the assets of which
  541  consist substantially of property that, in the aggregate, does
  542  not provide the spouse with sufficient income from or use of the
  543  trust assets, and if the amounts the trustee transfers from
  544  principal to income under s. 738.104 and distributes to the
  545  spouse from principal pursuant to the terms of the trust are
  546  insufficient to provide the spouse with the beneficial enjoyment
  547  required to obtain the marital deduction, even though, in the
  548  case of an elective share trust, a marital deduction is not made
  549  or is only partially made, the spouse may require the trustee of
  550  such marital trust or elective share trust to make property
  551  productive of income, convert property within a reasonable time,
  552  or exercise the power conferred by ss. 738.104 and 738.1041. The
  553  trustee may decide which action or combination of actions to
  554  take.
  555         Section 14. Applicability.—Except as otherwise provided in
  556  this act, the amendments made by this act apply to decedents
  557  whose death occurred on or after July 1, 2017.
  558         Section 15. This act shall take effect July 1, 2017.