Florida Probate Rule 5.360 - ELECTIVE SHARE | Syfert Law

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Florida Probate Rule 5.360

RULE 5.360. ELECTIVE SHARE

(a) Election. An election to take the elective share may be
filed by the surviving spouse, or on behalf of the surviving spouse
by an agent or guardian of the property of the surviving spouse.

(1) Election by Surviving Spouse. An electing surviving
spouse must file the election within the time required by law and
promptly serve a copy of the election on the personal representative
in the manner provided for service of formal notice.

(2) Election by Agent or Guardian of the Property of
Surviving Spouse.
(A) Petition for Approval. Before filing the election,
the agent or guardian of the property of the surviving spouse must
petition the court having jurisdiction of the probate proceeding for
approval to make the election. The petition for approval must allege
the authority to act on behalf of the surviving spouse and facts
supporting the election.

(B) Notice of Petition. Upon receipt of the petition,
the personal representative must promptly serve a copy of the
petition by formal notice on all interested persons.

(C) Order Authorizing Election. If the election is
approved, the order must include a finding that the election is in
the best interests of the surviving spouse during the spouse’s
probable lifetime.

(D) Filing the Election. Upon entry of an order
authorizing the filing of an election, the agent or guardian of the
property must file the election within the later of the time provided
by law or 30 days from service of the order and promptly serve a
copy of the election on the personal representative in the manner
provided for service of formal notice.

(b) Procedure for Election.

(1) Extension. Within the period provided by law to
make the election, the surviving spouse or an agent or guardian of
the property of the surviving spouse may petition the court for an
extension of time for making an election or for approval to make the
election. After notice and hearing the court for good cause shown
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.

(2) Withdrawal of Election. The surviving spouse, an
agent, a guardian of the property of the surviving spouse, or the
personal representative of the surviving spouse’s estate may
withdraw the election within the time provided by law.
(3) Service of Notice. Upon receipt of an election the
personal representative must serve a notice of election within 20
days following service of the election, together with a copy of the
election, on all interested persons in the manner provided for
service of formal notice. The notice of election must indicate the
names and addresses of the attorneys for the surviving spouse and
the personal representative and must state that:

(A) persons receiving a notice of election may be
required to contribute toward the satisfaction of the elective share;

(B) objections to the election must be served
within 20 days after service of the copy of the notice of election; and

(C) if no objection to the election is timely served,
an order determining the surviving spouse’s entitlement to the
elective share may be granted without further notice.

(4) Objection to Election. Within 20 days after service of
the notice of election, an interested person may serve an objection
to the election which must state with particularity the grounds on
which the objection is based. The objecting party must serve copies
of the objection on the surviving spouse and the personal
representative. If an objection is served, the personal representative
must promptly serve a copy of the objection on all other interested
persons who have not previously been served with a copy of the
objection.

(c) Determination of Entitlement.

(1) No Objection Served. If no objection to the election is
timely served, the court must enter an order determining the
spouse’s entitlement to the elective share.

(2) Objection Served. If an objection to the election is
timely served, the court must determine the surviving spouse’s
entitlement to the elective share after notice and hearing.
(d) Procedure to Determine Amount of Elective Share
and Contribution.

(1) Petition by Personal Representative. After entry of
the order determining the surviving spouse’s entitlement to the
elective share, the personal representative must file and serve a
petition to determine the amount of the elective share. The petition
must:

(A) give the name and address of each direct
recipient known to the personal representative;

(B) describe the proposed distribution of assets to
satisfy the elective share, and the time and manner of distribution;
and

(C) identify those direct recipients, if any, from
whom a specified contribution will be required and state the
amount of contribution sought from each.

(2) Service of Inventory. The inventory of the elective
estate required by rule 5.340, together with the petition, must be
served within 60 days after entry of the order determining
entitlement to the elective share on all interested persons in the
manner provided for service of formal notice.

(3) Petition by Spouse. If the personal representative
does not file the petition to determine the amount of the elective
share within 90 days from rendition of the order of entitlement, the
electing spouse or the agent or the guardian of the property or
personal representative of the electing spouse may file the petition
specifying as particularly as is known the value of the elective
share.

(4) Objection to Amount of Elective Share. Within 20
days after service of the petition to determine the amount of the
elective share, an interested person may serve an objection to the
amount of or distribution of assets to satisfy the elective share. The
objection must state with particularity the grounds on which the
objection is based. The objecting party must serve copies of the
objection on the surviving spouse and the personal representative.
If an objection is served, the personal representative must promptly
serve a copy of the objection on all interested persons who have not
previously been served.

(5) Determination of Amount of Elective Share and
Contribution.

(A) No Objection Served. If no objection is timely
served to the petition to determine the amount of the elective share,
the court must enter an order on the petition.

(B) Objection Served. If an objection is timely
served to the petition to determine the amount of the elective share,
the court must determine the amount of the elective share and
contribution after notice and hearing.

(6) Order Determining Amount of Elective Share and
Contribution. The order must:

(A) set forth the amount of the elective share;

(B) identify the assets to be distributed to the
surviving spouse in satisfaction of the elective share; and

(C) if contribution is necessary, specify the
amount of contribution for which each direct recipient is liable.

(e) Relief from Duty to Enforce Contribution. A petition to
relieve the personal representative from the duty to enforce
contribution must state the grounds on which it is based and notice
must be served on interested persons.

Committee Notes

The extensive rewrite of this rule in 2001 is intended to
conform it with and provide procedures to accommodate
amendments to Florida’s elective share statutes. Sections 732.201
et seq., Florida Statutes. Proceedings to determine entitlement to
elective share are not specific adversary proceedings under rule
5.025(a), but may be declared adversary at the option of the party.
Proceedings to determine the amount of elective share and
contribution are specific adversary proceedings under rule 5.025(a).
Requirements for service are intended to be consistent with the
requirements for formal notice. Rule 5.040. Service of process may
be required to obtain personal jurisdiction over direct recipients
who are not otherwise interested persons and who have not
voluntarily submitted themselves to the jurisdiction of the court.
Rule 5.040(a)(3)(C); chapter 48, Florida Statutes, Process and
Service of Process; chapter 49, Florida Statutes, Constructive
Service of Process. An inventory of the elective estate should be
afforded the same confidentiality as other estate inventories.
Section 733.604(1) and (2), Florida Statutes In fulfilling his or her
obligations under this rule, a personal representative is not
required to make impractical or extended searches for property
entering into the elective estate and the identities of direct
recipients. Preexisting rights to dower and curtesy formerly
addressed in subdivision (e) of this rule are now governed by new