Florida Estate Planning Lawyer Blog
The Fourth District Court of Appeals ruled this month that personal representatives of estates are no longer allowed to deduct attorney’s fees from a spouse’s elective share when litigating claims against the spouse’s stake in the inheritance. This holding of this case means that a spouse’s inheritance may now be much larger due to avoiding attorney’s costly fees.
So what exactly is an elective share in Florida? An elective share is a term that describes the portion of an estate that the surviving spouse of the deceased may claim through intestate succession or in place of what the spouse was left in the decedent’s will. Florida passed this law to ensure that no surviving spouse could be left with nothing. In Florida, a spouse is entitled to an amount equal to 30 percent of the elective estate.
Property that can be included in an elective share includes all property subject to estate administration in any state. This can include: joint bank accounts, Totten trusts, property held in joint tenancy, revocable trusts, life insurance policies, pensions and retirement plans, and other property passing directly to a surviving spouse.
The issue before the Court in the Estate of Konstantinos Boulis v. Efrosini Boulis was whether the personal representative of an estate may deduct a proportionate amount for the fees charged by the representative’s attorneys to litigate estate claims. The district court felt the representatives should be able deduct a portion of the attorney’s fees from the elective share, which would mean the surviving spouse in this case would actually receive an amount that was less than the 30 percent required by Florida Statutes. In the previous cases leading to this appeal the decedent had died and left nothing to his estranged spouse. The decedent had cut out his wife from his will entirely by leaving the majority of his estate to his two sons through a trust. The wife was not given an adequate amount of her late husband’s estate, and thus she was entitled to an elective share of the estate.
The Court of Appeals did not agree with the district court, and held attorney’s fees could not be deducted from the elective share. The Court came to the outcome by looking to the plain language of the statute’s language to resolve the issue. The Court stated, “Here, the statute clearly and unambiguously sets forth only four types of expenses or costs which the probate court is to deduct from the value of the assets in the surviving spouse’s elective share. Attorney’s fees is not one of those four.” Thus, the Court believes that if the Florida Legislature had intended for attorney’s fees to be deducted from a spouse’s elective share, it would have listed those fees as one of the exceptions.
This cases has now made the elective share a much more valuable option for spouses that have been cut out of wills or given too small an inheritance trough a will or trust. However, an elective share does bring an uncertainty about what assets the spouse will actually receive as the only requirement is that the value be worth 30 percent. This is why we advise clients to devise a detailed estate plan that leaves specific assets to your loved ones. For more information on estate plans and other probate issues like elective shares contact The Office of David M. Goldman PLLC today at 904-685-1200.