Can The Executor Object To A Surviving Spouse Taking An Elective Share Of An Estate?

Florida law permits the surviving spouse of a deceased individual to claim an “elective share” of their estate. The purpose of the elective share is to prevent someone from completely disinheriting their spouse. Basically, the elective share is equal to 30 percent of not just the deceased spouse’s probate assets, but also their homestead property, and any property in a revocable trust or that is subject to a joint tenancy or payable on death designation.

Once a surviving spouse files a notice claiming their elective share, the personal representative of the estate must notify all interested persons within 20 days. Any of those interested parties then have 20 days to file an objection to the election with the probate court.

Florida Court Rules 20-Day Clock Did Not Start Until Son’s Appointment as Executor of Father’s Estate

Although litigation over a spouse’s elective share is rare, it does occur. Indeed, the Florida Fourth District Court of Appeal recently addressed such a dispute. In Rasor v. Estate of Benard Rasor, the personal representative of an estate himself objected to the surviving spouse’s election. The litigation actually involved two probate estates, as the surviving spouse died four months after her husband.

Before she died, the wife filed a petition to probate her late husband’s “lost or destroyed” will. That will purportedly name her husband’s son as personal representative. The wife simultaneously filed her notice to claim her elective share in the estate. This took place in October 2017.

It was not until about six months later, in May 2018, that the son filed a separate probate petition and was appointed personal representative of his father’s estate. The son also filed and served the (now deceased) wife’s election at that time. Twenty days later, he filed his objection, which alleged the wife was “unduly influenced when she made her election.” Two other interested persons in the estate joined the objection.

The wife’s estate argued the objections had been filed too late. They should have been filed within 20 days of when the wife initially filed her election back in October 2017. By waiting until May 2018, the 20-day objection period had long expired, the wife’s estate maintained.

The trial court agreed with that interpretation of the law and ruled in favor of the wife’s estate. On appeal, however, the Fourth District reversed. It explained that the 20-day clock started to run when the son–acting as personal representative for the husband’s estate–was appointed. In other words, the 20-day period to file an objection starts when a personal representative has been appointed and serves the notice of election on the interested parties. Since there was no personal representative appointed until May 2018, that was when the 20-day clock started. As such, the Fourth District returned the case to the probate court for further proceedings on the objection to the election.

Contact a Pompano Beach Elective Share Lawyer Today

When a legal disagreement arises in a probate matter it is important to seek out timely advice from a qualified Pompano Beach estate litigation attorney. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.

Source:

4dca.org/content/download/833768/opinion/201489_DC08_03302022_100805_i.pdf