Order Determining Entitlement to the Elective Share Is Not Appealable
Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)
Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).
In this case, Lee County Circuit Court Judge G. Keith Cary entered an order finding that the decedent's widow was entitled to the elective share. The Personal Representative of the estate then appealed before the probate court ruled on step two in the elective share process. On its own motion, the Second DCA directed the Personal Representative to show cause why its appeal should not be dismissed because the order on appeal was a non-final, non-appealable order. The Second DCA then dismissed the appeal holding that step one in the elective share determination process is administrative and procedural, which means it's not appealable. Step two in the elective share determination process actually affects specific assets, thus making it final and appealable. The Second DCA also noted that while step one in the elective share determination process is not one of the specifically designated adversary proceedings listed in Florida Probate Rule 5.025(a), step two is.
My father lives in Florida and has been married to his third wife for 28 years - no children born or raised together. He has two daughters from his first marriage, she has two daughters from her previous marriage. He has designated in his will that his one million dollars worth of fixed annuities (his own investments) go to his two daughters. Her half million dollar estate (her own investments) will go to her daughters. We recently discovered the Florida elective share law (my father did not know about it and thought his assets were protected), and had an estate attorney draw up a postnuptial agreement. She refuses to sign it. She is soon to be 85 and he 88. My father does not want his estate to go to her but is leary of attorneys and does not want to continue business with one. He is also getting "tired" and believes "he will outlive her and it won't be an issue. Both have terrific monthly incomes and no mortagage. We understand her intention is to build her estate for her own children. Is there any way to protect his assets from the elective share law. Obviously, it is difficult to talk to her directly, and in spite of the fact that she would be well taken care of without a portion of my father's estate, she well intentions to "get her share." I fear my sister and I will be in for a mess should my father predecease her. Can you please advise?
Dear Diana,
If your father's spouse wont sign an elective-share waiver, then at the very least your father should consider including a stand-by "Elective Share Trust" in his Will. These trusts are specifically authorized by Florida Statute. If your father provides for an Elective Share Trust in his Will, assuming (1) his spouse survives him, and (2) she files an elective share claim, then her right to 30% of your father's assets at death will be satisfied in the form of a life-time trust. When your father's spouse passes away, the funds remaining in that trust may be disposed of in any way your father provides in his Will, including that $1 million in assets go to his two daughters.
Please feel free to call me if you have any follow up questions.
Regards. Juan.
P.S. Please remember that the information presented in this blog should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Until such time as you or your father may engage my firm with respect to this matter, our communications do not constitute legal or other professional advice.
A man and his wife are having marital problems. He has worked all his life with his son in business and has put all of his accounts in joint ownership with either his wife, son, daughter in law, grandson. He and his wife deed their home into an irrevocable living trust for the benefit of the grandchildren of his first marriage with his son as the trustee. Then the son as trustee deeds back a life estate only to his father. The man dies. The second wife widow, through her son from a previous marriage who was intentionally not included in the plans of the deceased seeks to get a full inventory of assets and an order approving the taking of an elective share. No elective share waiver was signed. Questions: What must be included in the inventory subject to administration, what is included in the elective share estate, must the trustee, (the son who is also the personal rep) be listed on the statement of creditors and is the transfer of funds from joint accounts shown on the inventory and statement of creditors?
spouse a dies leaving only joint bank account with child. Surviving spouse doese not make election for elective share and dies 4 months later leaving little to no assets. Can personal rep of deceased surviving spouse open estate and file for elective share of prior deceased spouse a in florida