IN RE ESTATE OF ANNA C. ANDERSON, DECEASED
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The court holds that a personal representative of a deceased surviving spouse cannot exercise the surviving spouse's elective share right under Florida law. The elective share exists solely to provide for the surviving spouse's needs during their lifetime, not to augment their estate for the benefit of heirs after death.
A personal representative may not exercise the surviving spouse's right of election. The elective share is exercisable only by the surviving spouse or by a guardian of the property of the surviving spouse, not by the personal representative of a deceased surviving spouse's estate.
[1] The right of election for an elective share of a deceased spouse's estate may be exercised by the surviving spouse or their guardian of the property.
[2] A personal representative of a deceased surviving spouse's estate cannot exercise the right of election.
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Join FLexlaw to unlock all legal intelligence“The right of election may be exercised: (1) By the surviving spouse, (2) By a guardian of the property of the surviving spouse.”
Sets forth the statutory language limiting who may exercise the elective share right, expressly excluding personal representatives.
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Join FLexlaw to unlock all legal intelligenceDavid Anderson was declared incompetent and lived as the ward of his son, Allan Anderson, in South Carolina. David's wife, Anna, died on January 18, 1…
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SHARP, G. K., Associate Judge.
Appellant, Allan Anderson, is the personal representative of his father, David Anderson’s estate. David’s wife, Anna, died on January 18, 1980, in Broward County, leaving her estate to assorted friends and relatives not including her husband, who had previously been declared incompetent and was the ward of his son, Allan Anderson. Husband was living with his son in South Carolina and died shortly after his wife on March 16, 1980, never having exercised his right to take elective share under the Florida Probate Code. The issue presented is whether a personal representative may exercise the right of election.
Section 732.210, Florida Statutes (1979), provides:
By whom exercisable. — The right of election may be exercised:
(1) By the surviving spouse,
(2) By a guardian of the property of the surviving spouse. The court having jurisdiction of the probate proceeding shall determine the election as the best interests of the surviving spouse require.
Appellant seeks to have this court extend the statute to include the personal representative of the estate of a surviving spouse. This was not the intent of the statute.
The elective share is a substitute for dower and curtesy, which were abolished by Section 732.111, Florida Statutes (1979). The purpose of dower and curtesy was to insure provision for the surviving spouse’s needs. When the surviving spouse dies, no like purpose remains.
The only reason for allowing the personal representative of the surviving spouse to make the election would be to increase the estate and benefit the heirs and devisees of the surviving spouse.
In re Estate of Pearson, 192 So. 2d 89 (Fla. 2d DCA 1966) determined that enriching the surviving spouse’s estate and passing something on to kinspeople has no place in the court’s consideration. The reasoning set forth in In re Estate of Pearson, supra, as applied to the elective share is still sound.
We hold that the elective share is for the express purpose of caring for the surviving spouse and not to augment the estate for the benefit of heirs.
For the above reasons, the order appealed from is affirmed.
AFFIRMED.
MOORE and HURLEY, JJ., concur.
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Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005)…e elective share. Appeal dismissed. SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, concur. . The elective share is a substitute for dower and curtesy, which have been abolished. See § 732.111, Fla. Stat. (2003); In re Estate of Anderson, 394 So. 2d 1146 (Fla. 4th DCA 1981).…
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Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986)…see no reason why the In re Estate of Hiley reasoning should not apply equally to the elective share. Cf. Allen v. Guthrie, 469 So. 2d 204 (Fla.2d DCA 1985) (analogizing dower and elective share timely filing requirement); In re Estate of Anderson, 394 So. 2d 1146 (Fla. 4th DCA 1981) (acknowledging that the dower principle that election is for surviving spouse’s benefit continues under elective share scheme). [*303] Neither Florida Rule of Probate and Guardianship Procedure 5.360 nor section 732.214, Florida…
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Ace J. Blackburn, Jr. v. Efrosini Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016)…g claims against Spouse’s elective share. [*568] The surviving spouse’s elective share is purely a creature of statute created by Florida’s Legislature as a replacement for the common law doctrine of “dower and curtesy.” See In re Anderson’s Estate, 394 So. 2d 1146 (Fla. 4th DCA 1981). The purpose of the elective share statute is to ensure provision for a surviving spouse’s needs. Id. Because this issue calls for interpretation and application of that statute, the proper review standard is de novo. Fla. Dep’t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of James R. Pearson, 192 So. 2d 89 (Fla. 2d DCA 1966)