The Florida Senate

¹733.817  Apportionment of estate taxes.--

(1)  Any estate, inheritance, or other death tax levied or assessed under the tax laws of this or any other state, political subdivision, or country or under any United States revenue act concerning any property included in the gross estate under the law, including the tax levied by s. 4980A of the Internal Revenue Code, but excluding taxes for which sources of payment are provided within ss. 2206, 2207, and 2603 of the Internal Revenue Code, shall be apportioned in the following manner:

(a)  If a part of the estate passed under a will as a devise to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount or in any other nonresiduary form, exclusive of property over which the decedent had a power of appointment as defined from time to time under the estate tax laws of the United States, the net amount of the tax attributable to it shall be charged to and paid from the residuary estate without requiring contribution from persons receiving the interests, except as otherwise directed by the governing instrument. In the event the residuary estate is insufficient to pay the tax attributable to the interests, any balance of the tax shall be equitably apportioned among the recipients of the interests in the proportions that the value of each interest included in the measure of the tax bears to the total of all interests so included, except as otherwise directed by the governing instrument.

(b)  If a part of the estate passed under the will as a residuary interest, exclusive of property over which the decedent had power of appointment, the net amount of tax attributable to it shall be equitably apportioned among the residuary beneficiaries in the proportions that the value of the residuary interest of each included in the measure of the tax bears to the total of all residuary interests so included, except as otherwise directed by the governing instrument. When a residuary interest is a temporary interest, the tax attributable to it shall be charged to corpus and not apportioned between temporary and remainder interests.

(c)  If a part of the property concerning which the tax is levied or assessed is held under the terms of any trust created inter vivos, then, unless the governing instrument directs otherwise:

1.  If any portion of the trust is directed to pass or to be held in further trust by reference to a specific property, or type of property, fund, sum, or statutory amount, or in any other nonresiduary form, the net amount of the tax attributable to that portion must be charged to and paid from the corpus of the residuary share of the trust without requiring contribution from the nonresiduary interest or the persons receiving or benefiting from that interest. If the residuary portion of the trust is insufficient to pay the tax attributable to all nonresiduary interests, any balance of the tax must be equitably apportioned among the recipients of those interests in the proportions that the value of each interest included in the measure of the tax bears to the total of all interest so included.

2.  The net amount of the tax directly attributable to the residuary share of the trust, if any, must be charged as follows: the net amount of the tax attributable to each residuary temporary interest must be charged to that portion of residuary principal that supports the temporary interest without apportionment, and the net amount of the tax attributable to the balance of the residuary share must be equitably apportioned among the residuary beneficiaries, by charge to the corpus of their interest in the proportions that the value of the residuary interest of each included in the measure of the tax bears to the total of all residuary interests included.

(d)  Real property or mobile home homesteads that are exempt from execution by law shall be exempt from apportionment of taxes. Persons taking an interest in the homesteads shall not be liable for apportionment of taxes on account of the homesteads. The net amount of the tax attributable to homestead property shall be paid from other assets of any trust or the estate subject to administration in the order as directed by the governing instrument or, absent this direction, in the following order:

1.  Property not disposed of by the will or trust.

2.  Property passing as the residuary estate.

3.  Property not specifically or demonstratively devised.

4.  Property specifically or demonstratively devised.

(e)  The balance of the net amount of the tax, including, but not limited to, any tax imposed concerning jointly held properties passing by survivorship, property passing by intestacy, annuities not created under the will or an inter vivos trust, and the tax imposed by s. 4980A of the Internal Revenue Code, shall be equitably apportioned among, and paid by, the recipients and beneficiaries of the properties or interests, in the proportion that the value of the property or interest of each included in the measure of the tax bears to the total value of all the properties and interests included in the measure of the tax, except as otherwise directed by the governing instrument. With respect to a temporary interest not in trust, the amount charged to the recipients or beneficiaries shall not be apportioned between temporary and remainder interests but shall be charged to and paid out of the corpus of the property or fund, except as otherwise directed by the governing instrument.

(f)  Nothing herein contained shall be construed to require the personal representative or other concerned fiduciary to pay any estate, inheritance, or other death taxes levied or assessed by any foreign country, unless specific directions to that effect are contained in the will or other instrument under which the fiduciary is acting.

(2)

(a)  The net amount of tax attributable to the interests encompassed by any one of paragraphs (1)(a) through (e) shall be the part of the net amount of the tax as finally determined, with interest on it, as the value of interests included in the measure of the tax and included in the paragraph bears to the amount of the net estate, except that, in the case of an inheritance or similar tax, the tax that is imposed on each beneficiary's interest, as determined under the law of the state, country, or political subdivision then under consideration, shall be deemed the tax attributable to the interest.

(b)  As used in this section, the term:

1.  "Net estate" means the gross estate, as defined by the estate, inheritance, or death tax laws of the particular state, country, or political subdivision whose tax is being apportioned, less the deductions, other than the specific exemption, allowed. All proportions based on net estate shall be determined without regard to any diminution in deductions resulting from the charge of any part of the tax to a deductible interest.

2.  "Included in the measure of the tax" means each separate tax that an interest may incur and in determining the proportion that each interest bears to the total value of all interests included in the measure of each tax, only interests included in the measure of that particular tax are considered. The term does not include any property or interest, whether passing under the will or not, to the extent the property or interest is exempt or is initially deductible from the gross estate, without regard to any subsequent diminution of the deduction by reason of the charge of any part of the tax to the property or interest.

3.  "Value" means the pecuniary worth of the interest involved as finally determined for purposes of the tax then under consideration, without regard to any diminution of it by reason of the charge of any part of tax.

4.  "Governing instrument" means a will, a trust agreement, or any other document controlling the devolution of an asset at the death with respect to which the tax is being levied, but a direction in the will or such other instrument for the payment of tax in a manner different than that provided for herein is effective to allocate and pay tax only from assets the devolution of which is subject to control under that instrument, except that a will direction to pay tax from a trust of which the testator was the grantor and which was revocable by the grantor until the date of the grantor's death, is effective if a contrary direction is not contained in the trust agreement.

5.  "Temporary interest" means an interest in income or an estate for a specific period of time or for life or for some other period controlled by reference to extrinsic events.

(c)  Except when the governing instrument otherwise provides, in the event a credit is given under the estate tax laws of the United States for any taxes paid to other countries or political subdivisions, the credit shall be apportioned under this section among the recipients of interests finally charged with the payment of the foreign tax in reduction of any United States estate tax chargeable to the recipients or interests, whether or not the United States estate tax is attributable to the foreign interests. Any excess of the credit shall be applied in reduction of the part of United States estate tax chargeable to residue, and any excess of the credit over the United States estate tax chargeable to residue shall be apportioned ratably among those persons or interests finally charged with the balance of the payment of United States estate tax.

(d)  A direction against apportionment under this section may be explicit or implicit from the terms of the governing instrument, but must be clear and unequivocal; provided, however, that an implicit direction against apportionment is not sufficient to avoid the apportionment under state or applicable federal law unless the court also finds that the testator considered and made a deliberate and informed decision about the burden of taxation.

(3)  Unless otherwise directed by the governing instrument, the tax shall be paid by the personal representative out of the estate, or if a personal representative is not acting under appointment, by a person receiving or holding the interests included in the measure of the tax. In all cases in which any property required to be included in the gross estate does not come into the possession of the personal representative, he or she shall recover:

(a)  From the fiduciary in possession of the corpus of the trust or of property subject to the power of appointment in cases in which property of a trust created inter vivos or property subject to a power of appointment is included in the gross estate; and

(b)  In all other cases, from the recipient or beneficiaries of property or interests with respect to which the tax is levied or assessed,

the proportionate amount of the tax payable by the fiduciary or persons with which they are chargeable under the provisions of this act, unless relieved of the duty as provided in subsection (6). This subsection shall not authorize the recovery of any taxes from any company issuing insurance included in the gross estate, or from any bank, trust company, savings and loan association, or similar institution with respect to any account in the name of the decedent and any other person that passed by operation of law on the decedent's death. If the fiduciary brings an action to recover a share of tax apportioned to an interest not within his or her control, the judgment he or she obtains may include costs and reasonable attorney's fees.

(4)  No personal representative or other fiduciary shall be required to transfer any property until the amount of any tax due from the transferee is paid or, if the apportionment of tax has not been determined, until adequate security is furnished for the payment. The fiduciary shall not be required to distribute assets that he or she reasonably anticipates may be necessary to pay any state or federal taxes.

(5)  After the amount of all estate, inheritance, and death taxes is finally determined, the personal representative or other fiduciary shall petition for an order of apportionment and shall give formal notice of the petition and the hearing to all interested persons. The personal representative shall be entitled, and it shall be his or her duty, except as provided in subsection (6), to attempt to effect apportionment as determined by the order, and the apportionment shall be prima facie correct in proceedings in any court or jurisdiction. The personal representative shall not be required to seek collection of any portion of tax attributable to any interest not within his or her control until after entry of the order.

(6)

(a)  A personal representative or other fiduciary who has the duty under this section of collecting the apportioned tax from persons interested in the estate may be relieved of the duty to collect the tax by an order of the court finding:

1.  That the estimated court costs and attorney fees in collecting the apportioned tax from a person interested in the estate will approximate the amount of the recovery.

2.  That the person interested in the estate is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand.

3.  That it is impracticable to enforce contribution of the apportioned tax against any person interested in the estate in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.

(b)  The fiduciary shall not be liable for failure to attempt to enforce collection if the attempt would in fact have been economically impracticable. Nothing in this section shall limit the right of any person who is charged with more than the amount of the tax apportionable to him or her to obtain contribution from those who shall not have paid the full amount of the tax apportionable to them, and that right is hereby conferred.

(c)  If a fiduciary obtains an order described above, the share of tax to which it refers shall be paid from assets of the estate in the order provided by s. 733.805. Any apportioned tax that is not collected shall also be paid from assets in the same order.

History.--s. 1, ch. 74-106; s. 95, ch. 75-220; s. 41, ch. 77-87; s. 273, ch. 79-400; s. 20, ch. 92-200; s. 1026, ch. 97-102; s. 9, ch. 97-240.

¹Note.--

A.  Section 9, ch. 97-240, amended s. 733.817, effective October 1, 1998, to read:

733.817  Apportionment of estate taxes.--

(1)  For purposes of this section:

(a)  "Fiduciary" means a person other than the personal representative in possession of property included in the measure of the tax who is liable to the applicable taxing authority for payment of the entire tax to the extent of the value of the property in his possession.

(b)  "Governing instrument" means a will, trust agreement, or any other document that controls the transfer of an asset on the occurrence of the event with respect to which the tax is being levied.

(c)  "Gross estate" means the gross estate, as determined by the Internal Revenue Code with respect to the federal estate tax and the Florida estate tax, and as such concept is otherwise determined by the estate, inheritance, or death tax laws of the particular state, country, or political subdivision whose tax is being apportioned.

(d)  "Included in the measure of the tax" means that for each separate tax that an interest may incur, only interests included in the measure of that particular tax are considered. The term "included in the measure of the tax" does not include any interest, whether passing under the will or not, to the extent the interest is initially deductible from the gross estate, without regard to any subsequent diminution of the deduction by reason of the charge of any part of the applicable tax to the interest. The term "included in the measure of the tax" does not include interests or amounts that are not included in the gross estate but are included in the amount upon which the applicable tax is computed, such as adjusted taxable gifts with respect to the federal estate tax. If an election is required for deductibility, an interest is not "initially deductible" unless the election for deductibility is allowed.

(e)  "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time.

(f)  "Net tax" means the net tax payable to the particular state, country, or political subdivision whose tax is being apportioned, after taking into account all credits against the applicable tax except as provided in this section. With respect to the federal estate tax, "net tax" is determined after taking into account all credits against the tax except for the credit for foreign death taxes.

(g)  "Nonresiduary devise" means any devise that is not a residuary devise.

(h)  "Nonresiduary interest" in connection with a trust means any interest in a trust which is not a residuary interest.

(i)  "Recipient" means, with respect to property or an interest in property included in the gross estate, an heir at law in an intestate estate, devisee in a testate estate, beneficiary of a trust, beneficiary of an insurance policy, annuity, or other contractual right, surviving tenant, taker as a result of the exercise or in default of the exercise of a general power of appointment, person who receives or is to receive the property or an interest in the property, or person in possession of the property.

(j)  "Residuary devise" has the meaning set forth in s. 731.201(30).

(k)  "Residuary interest," in connection with a trust, means an interest in the assets of a trust which remain after provision for any distribution that is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount.

(l)  "Revocable trust" means a trust as defined in s. 731.201(33) created by the decedent to the extent that the decedent had at his or her death the power to alter, amend, or revoke the trust either alone or in conjunction with any other person.

(m)  "State" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

(n)  "Tax" means any estate tax, inheritance tax, generation skipping transfer tax, or other tax levied or assessed under the laws of this or any other state, the United States, any other country, or any political subdivision of the foregoing, as finally determined, which is imposed as a result of the death of the decedent, including, without limitation, the tax assessed pursuant to s. 4980A of the Internal Revenue Code. The term also includes any interest and penalties imposed in addition to the tax. Unless the context indicates otherwise, the term "tax" means each separate tax.

(o)  "Temporary interest" means an interest in income or an estate for a specific period of time or for life or for some other period controlled by reference to extrinsic events, whether or not in trust.

(p)  "Tentative Florida tax" with respect to any property means the net Florida estate tax that would have been attributable to that property if no tax were payable to any other state in respect of that property.

(q)  "Value" means the pecuniary worth of the interest involved as finally determined for purposes of the applicable tax after deducting any debt, expense, or other deduction chargeable to it for which a deduction was allowed in determining the amount of the applicable tax. A lien or other encumbrance is not regarded as chargeable to a particular interest to the extent that it will be paid from other interests. The value of an interest shall not be reduced by reason of the charge against it of any part of the tax.

(2)  An interest in homestead property shall be exempt from the apportionment of taxes if such interest passes to a person to whom inures the decedent's exemption from forced sale under the State Constitution.

(3)  The net tax attributable to the interests included in the measure of each tax shall be determined by the proportion that the value of each interest included in the measure of the tax bears to the total value of all interests included in the measure of the tax. Notwithstanding the foregoing:

(a)  The net tax attributable to interests included in the measure of the tax by reason of s. 2044 of the Internal Revenue Code shall be determined in the manner provided for the federal estate tax in s. 2207A of the Internal Revenue Code, and the amount so determined shall be deducted from the tax to determine the net tax attributable to all remaining interests included in the measure of the tax.

(b)  The foreign tax credit allowed with respect to the federal estate tax shall be allocated among the recipients of interests finally charged with the payment of the foreign tax in reduction of any federal estate tax chargeable to the recipients of the foreign interests, whether or not any federal estate tax is attributable to the foreign interests. Any excess of the foreign tax credit shall be applied to reduce proportionately the net amount of federal estate tax chargeable to the remaining recipients of the interests included in the measure of the federal estate tax.

(c)  The reduction in the Florida tax on the estate of a Florida resident for tax paid to other states shall be allocated as follows:

1.  If the net tax paid to another state is greater than or equal to the tentative Florida tax attributable to the property subject to tax in the other state, none of the Florida tax shall be attributable to that property.

2.  If the net tax paid to another state is less than the tentative Florida tax attributable to the property subject to tax in the other state, the net Florida tax attributable to the property subject to tax in the other state shall be the excess of the amount of the tentative Florida tax attributable to the property over the net tax payable to the other state with respect to the property.

3.  Any remaining net Florida tax shall be attributable to property included in the measure of the Florida tax exclusive of property subject to tax in other states.

4.  The net federal tax attributable to the property subject to tax in the other state shall be determined as if it were located in the state.

(d)  The net tax attributable to a temporary interest, if any, shall be regarded as attributable to the principal that supports the temporary interest.

(4)(a)  Except as otherwise effectively directed by the governing instrument, if the Internal Revenue Code including, but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B, and 2603 of the Internal Revenue Code applies to apportion federal tax against recipients of certain interests, all net taxes, including taxes levied by the state attributable to each type of interest, shall be apportioned against the recipients of all interests of that type in the proportion that the value of each interest of that type included in the measure of the tax bears to the total of all interests of that type included in the measure of the tax.

(b)  The provisions of this subsection do not affect allocation of the reduction in the Florida tax as provided in this section with respect to estates of Florida residents which are also subject to tax in other states.

(5)  Except as provided above or as otherwise directed by the governing instrument, the net tax attributable to each interest shall be apportioned as follows:

(a)  For property passing under the decedent's will:

1.  The net tax attributable to nonresiduary devises shall be charged to and paid from the residuary estate whether or not all interests in the residuary estate are included in the measure of the tax. If the residuary estate is insufficient to pay the net tax attributable to all nonresiduary devises, the balance of the net tax attributable to nonresiduary devises shall be apportioned among the recipients of the nonresiduary devises in the proportion that the value of each nonresiduary devise included in the measure of the tax bears to the total of all nonresiduary devises included in the measure of the tax.

2.  The net tax attributable to residuary devises shall be apportioned among the recipients of the residuary devises included in the measure of tax in the proportion that the value of each residuary devise included in the measure of the tax bears to the total of all residuary devises included in the measure of the tax.

(b)  For property passing under the terms of any trust other than a trust created in the decedent's will:

1.  The net tax attributable to nonresiduary interests shall be charged to and paid from the residuary portion of the trust, whether or not all interests in the residuary portion are included in the measure of the tax. If the residuary portion of the trust is insufficient to pay the net tax attributable to all nonresiduary interests, the balance of the net tax attributable to nonresiduary interests shall be apportioned among the recipients of the nonresiduary interests in the proportion that the value of each nonresiduary interest included in the measure of the tax bears to the total of all nonresiduary interests included in the measure of the tax.

2.  The net tax attributable to residuary interests shall be apportioned among the recipients of the residuary interests included in the measure of the tax in the proportion that the value of each residuary interest included in the measure of the tax bears to the total of all residuary interests included in the measure of the tax.

(c)  The net tax attributable to an interest in homestead property which is exempt from apportionment pursuant to subsection (2) shall be apportioned against the recipients of other interests in the estate or passing under any revocable trust in the following order:

1.  Class I: Recipients of interests not disposed of by the decedent's will or revocable trust which are included in the measure of the federal estate tax.

2.  Class II: Recipients of residuary devises and residuary interests that are included in the measure of the federal estate tax.

3.  Class III: Recipients of nonresiduary devises and nonresiduary interests that are included in the measure of the federal estate tax. The net tax apportioned to a class, if any, pursuant to this paragraph shall be apportioned among the recipients in the class in the proportion that the value of the interest of each bears to the total value of all interests included in that class.

(d)  In the application of this subsection, paragraphs (a), (b), and (c) shall be applied to apportion the net tax to the recipients of the estate and the recipients of the decedent's revocable trust as if all recipients, other than the estate or trusts themselves, were taking under a common instrument.

(e)  The net tax imposed under s. 4980A of the Internal Revenue Code shall be apportioned among the recipients of the interests included in the measure of that tax in the proportion that the value of the interest of each bears to the total value of all interests included in the measure of that tax.

(f)  The net tax that is not apportioned under paragraphs (a), (b), and (c), including, but not limited to, the net tax attributable to interests passing by intestacy, jointly held interests passing by survivorship, insurance, properties in which the decedent held a reversionary or revocable interest, and annuities, shall be apportioned among the recipients of the remaining interests that are included in the measure of the tax in the proportion that the value of each such interest bears to the total value of all the remaining interests included in the measure of the tax.

(g)  If the court finds that it is inequitable to apportion interest, penalties, or both, in the manner provided in paragraphs (a)-(f), the court may assess liability for the payment thereof in the manner it finds equitable.

(h)1.  To be effective as a direction for payment of tax in a manner different from that provided in this section, the governing instrument must direct that the tax be paid from assets that pass pursuant to that governing instrument, except as provided in this section.

2.  If the decedent's will provides that the tax shall be apportioned as provided in the decedent's revocable trust by specific reference to the trust, the direction in the revocable trust shall be deemed to be a direction contained in the will and shall control with respect to payment of taxes from assets passing under both the will and the revocable trust.

3.  A direction in the decedent's will to pay tax from the decedent's revocable trust is effective if a contrary direction is not contained in the trust agreement.

4.  For a direction in a governing instrument to be effective to direct payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument, the governing instrument must expressly refer to this section, or expressly indicate that the property passing under the governing instrument is to bear the burden of taxation for property not passing under the governing instrument. A direction in the governing instrument to the effect that all taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise shall be effective to direct the payment from property passing under the governing instrument of taxes attributable to property not passing under the governing instrument.

5.  If there is a conflict as to payment of taxes between the decedent's will and the governing instrument, the decedent's will controls, except as follows:

a.  The governing instrument shall be given effect with respect to any tax remaining unpaid after the application of the decedent's will.

b.  A direction in a governing instrument to pay the tax attributable to assets that pass pursuant to the governing instrument from assets that pass pursuant to that governing instrument shall be effective notwithstanding any conflict with the decedent's will, unless the tax provision in the decedent's will expressly overrides the conflicting provision in the governing instrument.

(6)  The personal representative or fiduciary shall not be required to transfer to a recipient any property in possession of the personal representative or fiduciary which he or she reasonably anticipates may be necessary for the payment of taxes. Further, the personal representative or fiduciary shall not be required to transfer any property in possession of the personal representative or fiduciary to the recipient until the amount of the tax due from the recipient is paid by the recipient. If property is transferred before final apportionment of the tax, the recipient shall provide a bond or other security for his apportioned liability in the amount and form prescribed by the personal representative or fiduciary.

(7)(a)  The personal representative may petition at any time for an order of apportionment. If no administration has been commenced at any time after 90 days from the decedent's death any fiduciary may petition for an order of apportionment in the court in which venue would be proper for administration of the decedent's estate. Formal notice of the petition for order of apportionment shall be given to all interested persons. At any time after 6 months from the decedent's death, any recipient may petition such court for an order of apportionment.

(b)  The court shall determine all issues concerning apportionment. If the tax to be apportioned has not been finally determined, the court shall determine the probable tax due or to become due from all interested persons, apportion the probable tax, and retain jurisdiction over the parties and issues to modify the order of apportionment as appropriate until after the tax is finally determined.

(8)(a)  If the personal representative or fiduciary does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient, whether under this section, the Internal Revenue Code, or the governing instrument, if applicable, the personal representative or fiduciary shall recover the deficiency in tax so apportioned to the recipient:

1.  From the fiduciary in possession of the property to which the tax is apportioned, if any; and

2.  To the extent of any deficiency in collection from the fiduciary, or to the extent collection from the fiduciary is excused pursuant to subsection (9) and in all other cases, from the recipient of the property to which the tax is apportioned, unless relieved of this duty as provided in subsection (9).

(b)  In any action to recover the tax apportioned, the order of apportionment shall be prima facie correct.

(c)  In any action for the enforcement of an order of apportionment, the court shall award taxable costs as in chancery actions, including reasonable attorney's fees, and may award penalties and interest on the unpaid tax in accordance with equitable principles.

(d)  This subsection shall not authorize the recovery of any tax from any company issuing insurance included in the gross estate, or from any bank, trust company, savings and loan association, or similar institution with respect to any account in the name of the decedent and any other person which passed by operation of law on the decedent's death.

(9)(a)  A personal representative or fiduciary who has the duty under this section of collecting the apportioned tax from recipients may be relieved of the duty to collect the tax by an order of the court finding:

1.  That the estimated court costs and attorney's fees in collecting the apportioned tax from a person against whom the tax has been apportioned will approximate or exceed the amount of the recovery;

2.  That the person against whom the tax has been apportioned is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand; or

3.  That it is impracticable to enforce contribution of the apportioned tax against a person against whom the tax has been apportioned in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.

(b)  A personal representative or fiduciary shall not be liable for failure to attempt to enforce collection if the personal representative or fiduciary reasonably believes it would have been economically impracticable.

(10)  Any apportioned tax that is not collected shall be reapportioned in accordance with this section as if the portion of the property to which the uncollected tax had been apportioned had been exempt.

(11)  Nothing in this section shall limit the right of any person who has paid more than the amount of the tax apportionable to such person, calculated as if all apportioned amounts would be collected, to obtain contribution from those who have not paid the full amount of the tax apportionable to them, calculated as if all apportioned amounts would be collected, and that right is hereby conferred. In any action to enforce contribution, the court shall award taxable costs as in chancery actions, including reasonable attorney's fees.

(12)  Nothing herein contained shall be construed to require the personal representative or fiduciary to pay any tax levied or assessed by any foreign country, unless specific directions to that effect are contained in the will or other instrument under which the personal representative or fiduciary is acting.

B.  Section 14, ch. 97-240, provides that "section 9 of this act shall take effect October 1, 1998, and shall apply to the estates of decedents dying on or after October 1, 1998."

Note.--Created from former s. 734.041.