Florida Senate - 2010                             CS for SB 2620
       By the Committee on Commerce; and Senator Altman
       577-04361-10                                          20102620c1
    1                        A bill to be entitled                      
    2         An act relating to the estate tax; providing a short
    3         title; creating s. 198.46, F.S.; imposing a
    4         retaliatory tax on property of a nonresident decedent
    5         when the nonresident’s state of domicile imposes
    6         inheritance, estate, or other death taxes on Florida
    7         residents; creating s. 733.1051, F.S.; authorizing a
    8         court to construe the terms of certain wills to define
    9         the respective shares or determine beneficiaries under
   10         certain circumstances; defining terms; providing for
   11         nonapplication to certain dispositions; authorizing a
   12         personal representative to take certain actions
   13         without court order pending a determination of estate
   14         distribution; limiting personal representative
   15         liability; preserving certain rights to construe a
   16         will; providing for retroactive operation; providing
   17         effective dates.
   19  Be It Enacted by the Legislature of the State of Florida:
   21         Section 1. This act may be cited as the “Florida Taxpayers
   22  Protection Act.”
   23         Section 2. Section 198.46, Florida Statutes, is created to
   24  read:
   25         198.46 Retaliatory estate, inheritance, or other death
   26  tax.—
   27         (1) As used in this section, the term:
   28         (a)“Nonresident” means any person who is not a resident of
   29  this state but is a resident of the United States.
   30         (b)“State of domicile” means the state where a person is a
   31  resident.
   32         (2)A tax is imposed upon the transfer of property located
   33  in this state of every person who at the time of death is a
   34  nonresident. The tax is imposed only if the nonresident’s state
   35  of domicile imposes an estate, inheritance, or other death tax
   36  on the transfer of a Florida resident’s property located in that
   37  state and the amount of tax is in excess of the amount of such
   38  taxes which would be imposed by Florida on transfers of such
   39  nonresident’s similar property located in Florida.
   40         (3)The tax due under this section shall be equal to the
   41  tax that a nonresident would have to pay under the laws of his
   42  or her state of domicile if he or she were a Florida resident
   43  and the nonresident’s property located in Florida were located
   44  in the nonresident’s state of domicile and the nonresident’s
   45  property located in the state of domicile were located in
   46  Florida.
   47         (4)Notwithstanding any other provisions of this chapter,
   48  the tax imposed by this section is due and payable, and tax
   49  returns are due, on or before the last day prescribed by the
   50  laws of the nonresident’s state of domicile for the payment of
   51  tax or the filing of returns.
   52         Section 3. Effective upon this act becoming a law, section
   53  733.1051, Florida Statutes, is created to read:
   54         733.1051Limited judicial construction of will having
   55  federal tax provisions.—
   56         (1)Upon the application of a personal representative or a
   57  person who is or may be a beneficiary who is affected by the
   58  outcome of the construction, a court at any time may construe
   59  the terms of a will to define the respective shares or determine
   60  beneficiaries, in accordance with the intention of a testator,
   61  if a disposition occurs during the applicable period and the
   62  will contains a provision that:
   63         (a) Includes a disposition formula referring to the terms
   64  “unified credit,” “estate tax exemption,” “applicable exemption
   65  amount,” “applicable credit amount,” “applicable exclusion
   66  amount,” “generation-skipping transfer tax exemption,” “GST
   67  exemption,” “marital deduction,” “maximum marital deduction,”
   68  “unlimited marital deduction,” or “maximum charitable
   69  deduction”;
   70         (b) Measures a share of an estate based on the amount that
   71  may pass free of federal estate tax or the amount that may pass
   72  free of federal generation-skipping transfer tax;
   73         (c) Otherwise makes a disposition referring to a charitable
   74  deduction, marital deduction, or another provision of federal
   75  estate tax or generation-skipping transfer tax law; or
   76         (d) Appears to be intended to reduce or minimize the
   77  federal estate tax or generation-skipping transfer tax.
   78         (2) For purposes of this section:
   79         (a) The term “applicable period” means a period beginning
   80  January 1, 2010, and ending on the end of the day on the earlier
   81  of December 31, 2010, or the day before the date that an act
   82  becomes law that repeals or otherwise modifies or has the effect
   83  of repealing or modifying s. 901 of the Economic Growth and Tax
   84  Relief Reconciliation Act of 2001.
   85         (b) A “disposition occurs” when the testator dies.
   86         (3) In construing the will, the court shall consider the
   87  terms and purposes of the will, the facts and circumstances
   88  surrounding the creation of the will, and the testator’s
   89  probable intent. In determining the testator’s probable intent,
   90  the court may consider evidence relevant to the testator’s
   91  intent even though the evidence contradicts an apparent plain
   92  meaning of the will.
   93         (4) This section does not apply to a disposition that is
   94  specifically conditioned upon no federal estate or generation
   95  skipping transfer tax being imposed.
   96         (5)(a)Unless otherwise ordered by the court, during the
   97  applicable period and without court order, the personal
   98  representative administering a will containing one or more
   99  provisions described in subsection (1) may:
  100         1. Delay or refrain from making any distribution.
  101         2. Incur and pay fees and costs reasonably necessary to
  102  determine its duties and obligations, including compliance with
  103  provisions of existing and reasonably anticipated future federal
  104  tax laws.
  105         3. Establish and maintain reserves for the payment of these
  106  fees and costs and federal taxes.
  107         (b)The personal representative is not liable for its
  108  actions as provided in this subsection made or taken in good
  109  faith.
  110         (6) The provisions of this section are in addition to, and
  111  not in derogation of, rights under the common law to construe a
  112  will.
  113         (7)This section is remedial in nature and intended to
  114  provide a new or modified legal remedy. This section shall
  115  operate retroactively to January 1, 2010.
  116         Section 4. Except as otherwise expressly provided in this
  117  act and except for this section, which shall take effect upon
  118  this act becoming a law, this act shall take effect July 1,
  119  2010.