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.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
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:
54 733.1051 Limited 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.