Gus Boulis was a spectacularly successful self-made millionaire with a sixth grade education whose life story was as colorful as it was improbable. And it all came to an end in 2001 when he was gunned down gangland style. The “hit” took 12 years to unravel, culminating in the 2013 murder trial and conviction of Anthony “Little Tony” Ferrari. The wheels of justice do indeed move slowly — but they still beat probate! It’s 2016 and Boulis’s estate remains embroiled in litigation.

Boulis cut his wife out of his will, leaving her nothing. But does that mean she actually gets nothing? No way! The surviving spouse of a person who dies domiciled in Florida has the right to claim a portion of the deceased spouse’s estate known as the “elective share,” which is equal to 30% of the “elective estate.” The gross value of Mrs. Boulis’s elective share was $12.5 million.

Does the “elective share” get reduced by attorney’s fees? NO

Elective share calculations are tricky under the best of circumstances; add litigation to the mix and things get interesting real fast (as I’ve reported here). And one of the most confoundingly complex elements of this calculation is figuring out which expense items get netted out of the final figure and which don’t.

Blackburn v. Boulis, — So.3d —-, 2016 WL 231405 (Fla. 4th DCA January 20, 2016)

In large contested estates (like this one), the two biggest expense items are going to be estate taxes and attorneys’ fees. Both were heavily litigated in this estate. First up was taxes. As I reported here, the last time this estate was before the 4th DCA the court concluded Mrs. Boulis’s $12.5 million elective share is NOT exempt from paying its proportionate share of estate taxes. This time around the question was whether Mrs. Boulis’s elective share gets whittled down even further by attorneys’ fees. The 4th DCA said NO. Here’s why:

The 1998 version of the surviving spouse’s-elective-share statute is applicable to this appeal. That statute provides:

732.207 Amount of the elective share.—The elective share shall consist of an amount equal to 30 percent of the fair market value, on the date of death, of all assets referred to in s. 732.206, computed after deducting from the total value of the assets:

  1. All [1] valid claims against the estate paid or payable from the estate; and
  2. All [2] mortgages, [3] liens, or [4] security interests on the assets.

§ 732.207, Fla. Stat. (1998).

It is axiomatic that the Legislature is presumed to know the meaning of words it uses in laws it enacts and a court must ascribe generally-accepted meanings to words in a statute in the absence of contrary meanings expressly set forth in the statute. State v. Bodden, 877 So.2d 680, 685 (Fla.2004). In other words, when interpreting a statute, the court must look to the plain meaning of the language in the statute. P.E., 14 So.3d at 234. 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. § 732.207(1)-(2), Fla. Stat. (1998). Attorneys’ fees is not one of those four. Id. Had the Legislature intended to allow a probate court to deduct attorneys’ fees paid by an estate’s personal representative(s) in litigating claims from the surviving spouse’s elective share, it could and would have done so. Therefore, the probate court reversibly erred by deducting attorneys’ fees from the value of Spouse’s elective share.

Still true today? YES

One reason why doing an elective-share calculation can be so tough is that the statute’s been revamped heavily over time (see here). So would this case have turned out the same under today’s iteration? I think so. The controlling provision is now found in subsection (5) of F.S. 732.2055, which is limited to the same four cost items listed in the 1998 statute relied on by the 4th DCA:

  1. creditor claims,
  2. mortgages,
  3. liens and
  4. security interests.

In other words, attorney’s fees remain excluded. Here’s how the statute reads today:

732.2055 Valuation of the elective estate.—For purposes of s. 732.2035, “value” means . . .

(5) In the case of all other property, the fair market value of the property on the date of the decedent’s death, computed after deducting from the total value of the property:
(a) All [1] claims paid or payable from the elective estate; and
(b) To the extent they are not deducted under paragraph (a), all [2] mortgages, [3] liens, or [4] security interests on the property.