CS/HB 311

1
A bill to be entitled
2An act relating to probate; amending s. 222.21, F.S.;
3specifying additional circumstances under which certain
4funds or accounts are not exempt from a surviving spouse's
5claims; amending s. 731.110, F.S.; providing a
6prerequisite to admitting a will to probate or appointing
7a personal representative under certain circumstances;
8amending s. 731.201, F.S.; defining the terms "collateral
9heir" and "descendant"; creating s. 731.401, F.S.;
10providing for enforceability of will or trust provisions
11requiring arbitration of certain disputes; amending ss.
12732.102, 732.103, 732.104, 732.108, 732.401, and 732.507,
13F.S.; conforming provisions to new definitions; amending
14s. 732.2025, F.S.; revising the definition of "elective
15share trust"; amending ss. 732.2035 and 732.2075, F.S.;
16revising provisions relating to the elective estate and
17elective share; amending s. 732.4015, F.S.; revising a
18provision prohibiting devise of a homestead; creating s.
19733.620, F.S.; providing for unenforceability and
20invalidity of certain will provisions exculpating personal
21representatives; amending s. 734.101, F.S.; increasing a
22time period for procedures relating to foreign personal
23representatives; amending s. 895.02, F.S.; correcting a
24cross-reference; providing an effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Paragraph (d) of subsection (2) of section
29222.21, Florida Statutes, is amended to read:
30     222.21  Exemption of pension money and certain tax-exempt
31funds or accounts from legal processes.--
32     (2)
33     (d)  Any fund or account described in paragraph (a) is not
34exempt from the claims of an alternate payee under a qualified
35domestic relations order or from the claims of a surviving
36spouse pursuant to an order determining the amount of elective
37share and contribution as provided in part II of chapter 732.
38However, the interest of any alternate payee under a qualified
39domestic relations order is exempt from all claims of any
40creditor, other than the Department of Revenue, of the alternate
41payee. As used in this paragraph, the terms "alternate payee"
42and "qualified domestic relations order" have the meanings
43ascribed to them in s. 414(p) of the Internal Revenue Code of
441986.
45     Section 2.  Subsection (3) is added to section 731.110,
46Florida Statutes, to read:
47     731.110  Caveat; proceedings.--
48     (3)  When a caveat has been filed by an interested person
49other than a creditor, the court shall not admit a will of the
50decedent to probate or appoint a personal representative until
51the petition for administration has been served on the caveator
52or the caveator's designated agent by formal notice and the
53caveator has had the opportunity to participate in proceedings
54on the petition, as provided by the Florida Probate Rules.
55     Section 3.  Subsections (6) and (7) and subsections (8)
56through (37) of section 731.201, Florida Statutes, as amended by
57section 29 of chapter 2006-217, Laws of Florida, are renumbered
58as subsections (7) and (8) and subsections (10) through (39),
59respectively, and new subsections (6) and (9) are added to that
60section, to read:
61     731.201  General definitions.--Subject to additional
62definitions in subsequent chapters that are applicable to
63specific chapters or parts, and unless the context otherwise
64requires, in this code, in s. 409.9101, and in chapters 736,
65738, 739, and 744, the term:
66     (6)  "Collateral heir" means an heir who is related to the
67decedent through a common ancestor but who is not an ancestor or
68descendant of the decedent.
69     (9)  "Descendant" means a person in any generational level
70down the applicable individual's descending line and includes
71children, grandchildren, and more remote descendants. The term
72"descendant" is synonymous with the terms "lineal descendant"
73and "issue" but excludes collateral heirs.
74     Section 4.  Section 731.401, Florida Statutes, is created
75to read:
76     731.401  Arbitration of disputes.--
77     (1)  A provision in a will or trust requiring the
78arbitration of disputes, other than disputes of the validity of
79all or a part of a will or trust, between or among the
80beneficiaries and a fiduciary under the will or trust, or any
81combination of such persons or entities, is enforceable.
82     (2)  Unless otherwise specified in the will or trust, a
83will or trust provision requiring arbitration shall be presumed
84to require binding arbitration under s. 44.104.
85     Section 5.  Section 732.102, Florida Statutes, is amended
86to read:
87     732.102  Spouse's share of intestate estate.--The intestate
88share of the surviving spouse is:
89     (1)  If there is no surviving lineal descendant of the
90decedent, the entire intestate estate.
91     (2)  If there are surviving lineal descendants of the
92decedent, all of whom are also lineal descendants of the
93surviving spouse, the first $60,000 of the intestate estate,
94plus one-half of the balance of the intestate estate. Property
95allocated to the surviving spouse to satisfy the $60,000 shall
96be valued at the fair market value on the date of distribution.
97     (3)  If there are surviving lineal descendants, one or more
98of whom are not lineal descendants of the surviving spouse, one-
99half of the intestate estate.
100     Section 6.  Subsections (1), (2), and (6) of section
101732.103, Florida Statutes, are amended to read:
102     732.103  Share of other heirs.--The part of the intestate
103estate not passing to the surviving spouse under s. 732.102, or
104the entire intestate estate if there is no surviving spouse,
105descends as follows:
106     (1)  To the lineal descendants of the decedent.
107     (2)  If there is no lineal descendant, to the decedent's
108father and mother equally, or to the survivor of them.
109     (6)  If none of the foregoing, and if any of the
110descendants of the decedent's great-grandparents were Holocaust
111victims as defined in s. 626.9543(3)(a), including such victims
112in countries cooperating with the discriminatory policies of
113Nazi Germany, then to the lineal descendants of the great-
114grandparents. The court shall allow any such descendant to meet
115a reasonable, not unduly restrictive, standard of proof to
116substantiate his or her lineage. This subsection only applies to
117escheated property and shall cease to be effective for
118proceedings filed after December 31, 2004.
119     Section 7.  Section 732.104, Florida Statutes, is amended
120to read:
121     732.104  Inheritance per stirpes.--Descent shall be per
122stirpes, whether to lineal descendants or to collateral heirs.
123     Section 8.  Section 732.108, Florida Statutes, is amended
124to read:
125     732.108  Adopted persons and persons born out of wedlock.--
126     (1)  For the purpose of intestate succession by or from an
127adopted person, the adopted person is a lineal descendant of the
128adopting parent and is one of the natural kindred of all members
129of the adopting parent's family, and is not a lineal descendant
130of his or her natural parents, nor is he or she one of the
131kindred of any member of the natural parent's family or any
132prior adoptive parent's family, except that:
133     (a)  Adoption of a child by the spouse of a natural parent
134has no effect on the relationship between the child and the
135natural parent or the natural parent's family.
136     (b)  Adoption of a child by a natural parent's spouse who
137married the natural parent after the death of the other natural
138parent has no effect on the relationship between the child and
139the family of the deceased natural parent.
140     (c)  Adoption of a child by a close relative, as defined in
141s. 63.172(2), has no effect on the relationship between the
142child and the families of the deceased natural parents.
143     (2)  For the purpose of intestate succession in cases not
144covered by subsection (1), a person born out of wedlock is a
145lineal descendant of his or her mother and is one of the natural
146kindred of all members of the mother's family. The person is
147also a lineal descendant of his or her father and is one of the
148natural kindred of all members of the father's family, if:
149     (a)  The natural parents participated in a marriage
150ceremony before or after the birth of the person born out of
151wedlock, even though the attempted marriage is void.
152     (b)  The paternity of the father is established by an
153adjudication before or after the death of the father.
154     (c)  The paternity of the father is acknowledged in writing
155by the father.
156     Section 9.  Subsection (2) of section 732.2025, Florida
157Statutes, is amended to read:
158     732.2025  Definitions.--As used in ss. 732.2025-732.2155,
159the term:
160     (2)  "Elective share trust" means a trust under which
161where:
162     (a)  The surviving spouse is entitled for life to the use
163of the property or to all of the income payable at least as
164often as annually;
165     (b)  The trust is subject to the provisions of former s.
166738.12 or the surviving spouse has the right under the terms of
167the trust or state law to require the trustee either to make the
168property productive or to convert it within a reasonable time;
169and
170     (c)  During the spouse's life, no person other than the
171spouse has the power to distribute income or principal to anyone
172other than the spouse.
173
174As used in this subsection, the term "income" has the same
175meaning as that provided in s. 643(b) of the Internal Revenue
176Code, as amended, and regulations adopted under that section.
177     Section 10.  Paragraph (b) of subsection (8) of section
178732.2035, Florida Statutes, is amended to read:
179     732.2035  Property entering into elective estate.--Except
180as provided in s. 732.2045, the elective estate consists of the
181sum of the values as determined under s. 732.2055 of the
182following property interests:
183     (8)  Property that was transferred during the 1-year period
184preceding the decedent's death as a result of a transfer by the
185decedent if the transfer was either of the following types:
186     (b)  Any transfer of property to the extent not otherwise
187included in the elective estate, made to or for the benefit of
188any person, except:
189     1.  Any transfer of property for medical or educational
190expenses to the extent it qualifies for exclusion from the
191United States gift tax under s. 2503(e) of the Internal Revenue
192Code, as amended; and
193     2.  After the application of subparagraph (b)1., the first
194annual exclusion amount $10,000 of property transferred to or
195for the benefit of each donee during the 1-year period, but only
196to the extent the transfer qualifies for exclusion from the
197United States gift tax under s. 2503(b) or (c) of the Internal
198Revenue Code, as amended. For purposes of this subparagraph, the
199term "annual exclusion amount" means the amount of one annual
200exclusion under s. 2503(b) or s. 2503(c) of the Internal Revenue
201Code, as amended.
202     Section 11.  Subsection (2) of section 732.2075, Florida
203Statutes, is amended to read:
204     732.2075  Sources from which elective share payable;
205abatement.--
206     (2)  If, after the application of subsection (1), the
207elective share is not fully satisfied, the unsatisfied balance
208shall be apportioned among the direct recipients of the
209remaining elective estate in the following order of priority:
210     (a)  Class 1.--The decedent's probate estate and revocable
211trusts.
212     (b)  Class 2.--Recipients of property interests, other than
213protected charitable interests, included in the elective estate
214under s. 732.2035(2), (3), or (6) and, to the extent the
215decedent had at the time of death the power to designate the
216recipient of the property, property interests, other than
217protected charitable interests, included under s. 732.2035(5)
218and (7).
219     (c)  Class 3.--Recipients of all other property interests,
220other than protected charitable interests, included in the
221elective estate.
222     (d)  Class 4.--Recipients of protected charitable lead
223interests, but only to the extent and at such times that
224contribution is permitted without disqualifying the charitable
225interest in that property for a deduction under the United
226States gift tax laws.
227
228For purposes of this subsection, a protected charitable interest
229is any interest for which a charitable deduction with respect to
230the transfer of the property was allowed or allowable to the
231decedent or the decedent's spouse under the United States gift
232or income tax laws. A protected charitable lead interest is a
233protected charitable interest where one or more deductible
234interests in charity precede some other nondeductible interest
235or interests in the property.
236     Section 12.  Subsection (1) of section 732.401, Florida
237Statutes, is amended to read:
238     732.401  Descent of homestead.--
239     (1)  If not devised as permitted by law and the Florida
240Constitution, the homestead shall descend in the same manner as
241other intestate property; but if the decedent is survived by a
242spouse and one or more lineal descendants, the surviving spouse
243shall take a life estate in the homestead, with a vested
244remainder to the lineal descendants in being at the time of the
245decedent's death per stirpes.
246     Section 13.  Subsection (1) of section 732.4015, Florida
247Statutes, is amended to read:
248     732.4015  Devise of homestead.--
249     (1)  As provided by the Florida Constitution, the homestead
250shall not be subject to devise if the owner is survived by a
251spouse or a minor child or minor children, except that the
252homestead may be devised to the owner's spouse if there is no
253minor child or minor children.
254     Section 14.  Subsection (1) of section 732.507, Florida
255Statutes, is amended to read:
256     732.507  Effect of subsequent marriage, birth, adoption, or
257dissolution of marriage.--
258     (1)  Neither subsequent marriage, birth, nor adoption of
259lineal descendants shall revoke the prior will of any person,
260but the pretermitted child or spouse shall inherit as set forth
261in ss. 732.301 and 732.302, regardless of the prior will.
262     Section 15.  Section 733.620, Florida Statutes, is created
263to read:
264     733.620  Exculpation of personal representative.--
265     (1)  A term of a will relieving a personal representative
266of liability to a beneficiary for breach of fiduciary duty is
267unenforceable to the extent that the term:
268     (a)  Relieves the personal representative of liability for
269breach of fiduciary duty committed in bad faith or with reckless
270indifference to the purposes of the will or the interests of
271interested persons; or
272     (b)  Was inserted into the will as the result of an abuse
273by the personal representative of a fiduciary or confidential
274relationship with the testator.
275     (2)  An exculpatory term drafted or caused to be drafted by
276the personal representative is invalid as an abuse of a
277fiduciary or confidential relationship unless:
278     (a)  The personal representative proves that the
279exculpatory term is fair under the circumstances.
280     (b)  The term's existence and contents were adequately
281communicated directly to the testator or to the independent
282attorney of the testator. This paragraph applies only to wills
283created on or after July 1, 2007.
284     Section 16.  Subsections (3) and (4) of section 734.101,
285Florida Statutes, are amended to read:
286     734.101  Foreign personal representative.--
287     (3)  Debtors who have not received a written demand for
288payment from a personal representative or curator appointed in
289this state within 90 60 days after appointment of a personal
290representative in any other state or country, and whose property
291in Florida is subject to a mortgage or other lien securing the
292debt held by the foreign personal representative, may pay the
293foreign personal representative after the expiration of 90 60
294days from the date of appointment of the foreign personal
295representative. Thereafter, a satisfaction of the mortgage or
296lien executed by the foreign personal representative, with an
297authenticated copy of the letters or other evidence of authority
298attached, may be recorded in the public records. The
299satisfaction shall be an effective discharge of the mortgage or
300lien, irrespective of whether the debtor making payment had
301received a written demand before paying the debt.
302     (4)  Except as provided in s. 655.936, all persons indebted
303to the estate of a decedent, or having possession of personal
304property belonging to the estate, who have received no written
305demand from a personal representative or curator appointed in
306this state for payment of the debt or the delivery of the
307property are authorized to pay the debt or to deliver the
308personal property to the foreign personal representative after
309the expiration of 90 60 days from the date of appointment of the
310foreign personal representative.
311     Section 17.  Subsection (10) of section 895.02, Florida
312Statutes, is amended to read:
313     895.02  Definitions.--As used in ss. 895.01-895.08, the
314term:
315     (10)  "Trustee" means any of the following:
316     (a)  Any person acting as trustee pursuant to a trust
317established under s. 689.07 or s. 689.071 in which the trustee
318holds legal or record title to real property.
319     (b)  Any person who holds legal or record title to real
320property in which any other person has a beneficial interest.
321     (c)  Any successor trustee or trustees to any or all of the
322foregoing persons.
323
324However, the term "trustee" does not include any person
325appointed or acting as a personal representative as defined in
326s. 731.201(27)(25) or appointed or acting as a trustee of any
327testamentary trust or as a trustee of any indenture of trust
328under which any bonds have been or are to be issued.
329     Section 18.  This act shall take effect July 1, 2007.


CODING: Words stricken are deletions; words underlined are additions.