Do you need a court order to file a late elective-share claim?

A surviving spouse’s right to an “elective share” reflects Florida’s strong public policy favoring the protection of surviving spouses. On the other hand, the fact that elective-share claims are subject to filing deadlines reflects a potentially competing public policy favoring the speedy and efficient conclusion of probate proceedings.

Both of these public policy priorities are at play in F.S. 732.2135, the probate code provision governing elective-share filing deadlines.

732.2135(2) says you can file a late elective-share claim only if a judge decides there was “good cause shown.” In other words — it’s not guaranteed, you need a court order, and if the extension is granted, the judge sets your new filing deadline.

(2) … For good cause shown, the court may extend the time for election. If the court grants the petition for an extension, the election must be filed within the time allowed by the extension.

In this subsection the statute’s tilted in favor of speed and efficiency by making it tougher to file late claims.

On the other hand, 732.2135(4) shifts the balance in the opposite direction, favoring spousal rights by preserving any late-filed elective share claim as long as you manage to file a timely extension petition. In other words — it’s guaranteed, no court order is needed, and you set your own filing deadline (all you have to do is file before the new deadline you asked for in your own petition).

(4) A petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election.

I don’t see how it’s possible to reconcile 732.2135(2) and 732.2135(4). And yet that’s exactly what the court was asked to do in the Futch case.

Futch v. Haney, — So.3d —-, 2021 WL 4760131 (Fla. 2d DCA October 13, 2021)

In this case a surviving widow filed not one — but three — petitions under F.S. 732.2135 asking for an extension of her elective-share filing deadline. Each additional petition for extension was filed within the time sought in the prior petition for extension. The day after she filed her third extension petition, surviving spouse went ahead and simply filed her elective share petition (which was within the time sought in her extension petition).

Do you need a court order to file a late elective-share claim? NO

All of the estate’s other interested parties objected to both the surviving widow’s extension petition and her elective share claim. The trial judge ruled in favor of the objecting parties, presumably choosing to enforce the “good cause” requirement in 732.2135(2) over the automatic tolling provision in 732.2135(4). Unfortunately for the objecting parties, on appeal the 2d DCA decided to go the other way. Here’s why:

Pursuant to [732.2135(1)], [Widow] was required to file her election within six months after the date of service of the notice of administration. However, within that time, she was permitted to petition the court for an extension, as provided in [732.2135(2)]. Such a petition for extension of time was required to “toll the time for making the election,” as provided in [732.2135(4)]. The statutory language is clear; because [Widow] had filed a timely petition for an extension of time, the time for making the election was tolled. … Each additional petition for extension was filed within the time sought in the prior petition, thus continuing to toll the time.

The plain language of the statute does not limit the amount of time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely subsequent petition seeking additional time, and it does not require a hearing or ruling on a petition in order for the time to be tolled. [732.2135(2)] addresses when a trial court may grant an extension (for good cause shown) and provides that if the trial court grants the extension, the election must be filed within the time allowed by the extension. But [732.2135(2)] does not require the trial court to grant a petition for extension before the time is tolled; such a reading would render meaningless the tolling provision in [732.2135(4)]. … Here, the tolling provision in [732.2135(4)] applied to [Widow’s] petitions. Because [Widow’s] election was filed during the tolling period, the election was timely.

This reading of the statute is fine if the intent is to prioritize spousal rights, which seems to be exactly what the 2d DCA had in mind:

Our conclusion is consistent with Florida’s strong public policy of protecting a surviving spouse. See Via v. Putnam, 656 So. 2d 460, 462 (Fla. 1995) (recognizing that the elective share statutes “suggest a strong public policy in favor of protecting a surviving spouse’s right to receive an elective share” (quoting Putnam v. Via, 638 So. 2d 981, 984 (Fla. 2d DCA 1994))); Velde v. Velde, 867 So. 2d 501, 507 (Fla. 4th DCA 2004) (noting “Florida’s strong public policy favoring protection of the surviving spouse”).