EMMA A. ALLEN, APPELLANT,
v.
ROWLAND J. GUTHRIE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ELDIE B. ALLEN, DECEASED, APPELLEE
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Emma Allen, claiming to be the widow of a decedent, filed a late notice of election to take a statutory share of the estate. The trial court struck the notice as untimely, and this court affirms, holding that strict statutory time limits for elective share elections cannot be relaxed despite equitable circumstances.
The court held that a surviving spouse must file an election within four months from first publication of notice of administration, and this period cannot be extended absent a proceeding involving construction, admission to probate, or validity of the will. Equitable considerations do not permit departure from the statute's strict time limits, and failure to file timely bars the claim.
[1] A surviving spouse must file an election to take a statutory share of an estate within four months from the first publication of notice of administration.
[2] The statutory period for a surviving spouse to elect a statutory share may be enlarged only where a proceeding affects the estate and places the elective share in doubt.
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Join FLexlaw to unlock all legal intelligence“A surviving spouse must file an election to take a statutory share of the estate within four months from the first publication of notice of administration.”
Establishes the controlling statutory deadline for elective share elections.
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Join FLexlaw to unlock all legal intelligenceEmma Allen was separated from her husband for twenty years and was residing in a nursing home in Cincinnati when he died in December 1983. She did not…
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FRANK, Judge.
In this case the appellant, Emma A. Allen, who is allegedly the widow of a decedent, filed an untimely notice of election which was stricken by the trial court. We affirm the trial court’s action.
A surviving spouse must file an election to take a statutory share of the estate within four months from the first publication of notice of administration. § 732.212, Fla.Stat. (1983). The statute contemplates the enlargement of that period only where “a proceeding occurs involving the construction, admission to probate, or validity of the will or any other matter affecting the estate ...” which results in the complete estate, subject to the elective share, being placed in doubt. Id. If such a proceeding is initiated, the surviving spouse is accorded forty days from its termination in which to elect. Id. A time-enlarging circumstance is not present in this matter. The appellant’s failure to file her notice of election in a timely manner was asserted, however, to have resulted from ignorance of the death of her spouse from whom she had been separated for twenty years. The appellant alleges that she was residing in a nursing home in Cincinnati in December, 1983, when her husband died, and it was only after her daughter visited Pinellas County in July, 1984, that the appellant learned of his death. By the time she contacted an attorney and filed an objection to probate and a notice of election, the statutory time for the filing of an election had passed.
The appellant contends that the equities are with her and that justice requires liberal construction of the statute. Notwithstanding the validity of the equitable considerations which occasioned the appellant’s delay in filing her notice of election, we are not able to depart from the strictures contained in the statute. Moreover, the period within which a surviving spouse must elect dower under the predecessor statute has been narrowly construed. See Boyer v. Branche, 369 So. 2d 596 (Fla. 1st DCA 1978); In Re Estate of Arner, 218 So. 2d 471 (Fla. 1st DCA 1969). As was stated in In Re Aron’s Estate, 118 So. 2d 546, 548 (Fla. 3d DCA 1960), “[although the origin of dower is very ancient, and exists at common law, the right referred to as dower in Florida springs wholly from the statutory law_ This right to a dower interest as created by the Florida Statutes does not come into being by the terms of the statute unless the widow elects to take the interest by an instrument in writing.”
An apt analogy may be drawn between dower and the elective share. A surviving spouse has no right to an elective share absent a timely election to take that share. Order and finality in the administration of estates, as is reflected in section 732.212’s time limits, are paramount concerns; and failure to elect within the period prescribed by the Legislature bars a claim. The trial judge correctly dismissed the appellant’s objection to probate and notice of election.
Affirmed.
RYDER, C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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In re Est. OF Joseph Francis Gaspelin v. Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA 1989)…elective share under section 732.201, Florida Statutes (1985). The code does require the spouse’s election to be filed within a specific time period. § 732.212, Fla.Stat. (1985). If it is not timely filed, the election is invalid. Allen v. Guthrie, 469 So. 2d 204 (Fla. 2d DCA 1985). While the code does extend the time for filing an election under certain circumstances, it does not specifically state that an unresolved adversary proceeding concerning the issue of pretermitted spouse stays the time for filing…
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Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986)…of Hiley, 262 So. 2d at 478. Since the right to election is a factor common to both the dower and elective share schemes, we 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…
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In re the Est. OF Henry C. Loewy v. Green, 638 So. 2d 144 (Fla. 4th DCA 1994)…lear that the legislative intent behind imposing the 4 month limitation period is to reduce the time for concluding probate proceedings and to foster the resolution of probate issues in an orderly and expeditious manner. See, e.g., Allen v. Guthrie, 469 So. 2d 204 (Fla. 2d DCA 1985); In re Estate of Robins, 463 So. 2d 273 (Fla. 2d DCA 1984). We recognize that the statute does not explicitly impose a time limit on filing a proceeding involving “the construction ... of a will, or on any other matter affecting t…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of David Aron, 118 So. 2d 546 (Fla. 3d DCA 1960)
- In re Est. of Dale D. Arner v. Meals, 218 So. 2d 471 (Fla. 1st DCA 1969)
- Boyer v. Branche, 369 So. 2d 596 (Fla. 1st DCA 1978)