Ever since the statutory
elective share replaced dower and curtesy, courts have been trying to expand the property subject to the spouse's
elective share.
Elective Share, Homestead, and Statutory Entitlements under Florida Law
Specialties are Probate, trusts,
elective share trust, wills, power of atty, Medicaid, VA, and LTC planning.
This third edition offers expanded coverage of the
elective share doctrine of the Uniform Probate Code, analyzing the Code's harmless error approach versus the traditional strict compliance approach.
The following [begin strikethrough]must be[end strikethrough]are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of
elective share and contribution, and for revocation of probate of a will.
A number of states grant a surviving spouse the right to take an
elective share of the decendent spouse's estate.
However, before pursuing such an agreement, local law should be consulted to ensure that such restrictive agreements are enforceable, especially in light of a surviving spouse's
elective share statute or other statutory authority that gives the surviving spouse the right to select the S corporation stock from the decedent's estate.
The IRS has addressed the following issues: Timing of the charitable deduction in connection with gifts of stock options, gifts where the donor retains the ability to manage the gift property, final regulations concerning the charitable remainder trust characterization and ordering rules, and a controversial (and withdrawn) proposal concerning the impact of spousal
elective share laws on the qualification of charitable remainder trusts.
Simply removing the spouse from the documents, however, does not completely remove the spouse from inheriting by an
elective share (discussed below).
An election to take the
elective share may be filed by the surviving spouse, or on behalf of the surviving spouse by an attorney-in-fact or guardian of the property of the surviving spouse.
Thus, the proposed regulations provide that substantially separate and independent shares of different beneficiaries are to be treated as separate estates for purposes of computing DNI; further, a surviving spouse's statutory
elective share is a separate share.
The surviving spouse would be limited to pursuing an
elective share court proceeding.
