Bill Text: FL S1064 | 2024 | Regular Session | Comm Sub


Bill Title: Wills and Estates

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2024-03-01 - Laid on Table, refer to CS/HB 923 [S1064 Detail]

Download: Florida-2024-S1064-Comm_Sub.html
       Florida Senate - 2024                             CS for SB 1064
       
       
        
       By the Committee on Banking and Insurance; and Senator Powell
       
       
       
       
       
       597-03008-24                                          20241064c1
    1                        A bill to be entitled                      
    2         An act relating to wills and estates; amending s.
    3         28.223, F.S.; expanding the types of probate documents
    4         that must be recorded; revising a provision for
    5         incorporating a certain direction by reference;
    6         amending s. 732.217, F.S.; revising the types of
    7         property subject to the provisions of a certain act;
    8         amending s. 732.218, F.S.; revising the types of
    9         property for which there is a rebuttable presumption
   10         under a specified act; amending s. 732.219, F.S.;
   11         specifying that certain property is either included or
   12         excluded from the probate estate at the time of death;
   13         defining the term “probate estate”; authorizing
   14         specified parties to waive certain property rights;
   15         specifying how such rights may be waived; requiring
   16         that such waiver include specified language; repealing
   17         s. 732.221, F.S., relating to perfection of title of
   18         personal representative or beneficiary; creating s.
   19         732.2211, F.S.; providing that demands and disputes
   20         arising under a certain act must be determined using a
   21         specified action; requiring that such action be
   22         governed by specified rules; requiring that such
   23         action be filed within a certain period of time;
   24         providing construction; providing that certain parties
   25         have no duty to discover if property is subject to a
   26         specified act; providing exceptions; providing that
   27         certain rights are forfeited if specified actions are
   28         not taken; prohibiting certain parties from being held
   29         liable in specified circumstances; providing
   30         construction; repealing s. 732.223, F.S., relating to
   31         perfection of title of surviving spouses; creating s.
   32         732.2231, F.S.; providing definitions; providing that
   33         certain parties are not liable for specified actions
   34         taken regarding property subject to a certain act;
   35         amending s. 732.225, F.S.; expanding the types of
   36         property for which there is a certain conclusive
   37         presumption; amending s. 732.702, F.S.; expanding the
   38         types of rights which may be waived by a surviving
   39         spouse; expanding the types of rights considered to be
   40         “all rights” within a waiver; amending s. 733.212,
   41         F.S.; requiring that a notice of administration state
   42         that specified parties have no duty to discover if
   43         property is subject to a certain act; providing an
   44         exception; amending s. 733.2121, F.S.; requiring that
   45         a notice to creditors state that specified parties
   46         have no duty to discover if property is subject to a
   47         certain act; providing an exception; amending s.
   48         733.607, F.S.; specifying that specified parties have
   49         no rights to, and may not take possession of, certain
   50         property; providing effective dates.
   51          
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Effective January 1, 2025, subsection (1) of
   55  section 28.223, Florida Statutes, is amended to read:
   56         28.223 Probate records; recordation.—
   57         (1) The clerk of the circuit shall record all wills and
   58  codicils admitted to probate, orders admitting the will to
   59  probate, orders determining beneficiaries, orders revoking the
   60  probate of any wills and codicils, letters of administration,
   61  orders affecting or describing real property, final orders,
   62  orders of final discharge, and orders of guardianship filed in
   63  the clerk’s office. No other petitions, pleadings, papers, or
   64  other orders relating to probate matters shall be recorded
   65  except on the written direction of the court. The direction may
   66  be in the order by incorporation in the order of the words “To
   67  be recorded,” or words to that effect. Failure to record an
   68  order or a judgment does shall not affect its validity.
   69         Section 2. Section 732.217, Florida Statutes, is amended to
   70  read:
   71         732.217 Application.—Sections 732.216-732.228 apply to the
   72  disposition at death of the following property acquired by a
   73  married person:
   74         (1) Personal property, except personal property held as
   75  tenants by the entirety, wherever located, which:
   76         (a) Was acquired as, or became and remained, community
   77  property under the laws of another jurisdiction;
   78         (b) Was acquired with the rents, issues, or income of, or
   79  the proceeds from, or in exchange for, community property; or
   80         (c) Is traceable to that community property.
   81         (2) Real property, except real property held as tenants by
   82  the entirety and homestead property, which is located in this
   83  state, and which:
   84         (a) Was acquired with the rents, issues, or income of, the
   85  proceeds from, or in exchange for, property acquired as, or
   86  which became and remained, community property under the laws of
   87  another jurisdiction; or
   88         (b) Is traceable to that community property.
   89         Section 3. Subsection (2) of section 732.218, Florida
   90  Statutes, is amended to read:
   91         732.218 Rebuttable presumptions.—In determining whether ss.
   92  732.216-732.228 apply to specific property, the following
   93  rebuttable presumptions apply:
   94         (2) Real property located in this state, other than
   95  homestead and real property held as tenants by the entirety, and
   96  personal property wherever located acquired by a married person
   97  while domiciled in a jurisdiction under whose laws property
   98  could not then be acquired as community property and title to
   99  which was taken in a form which created rights of survivorship
  100  are presumed to be property to which these sections do not
  101  apply.
  102         Section 4. Section 732.219, Florida Statutes, is amended to
  103  read:
  104         732.219 Disposition upon death; waiver.—
  105         (1) Upon the death of a married person, one-half of the
  106  property to which ss. 732.216-732.228 apply is the property of
  107  the surviving spouse, is not property of the decedent’s probate
  108  estate, and is not subject to testamentary disposition by the
  109  decedent or distribution under the laws of succession of this
  110  state. One-half of that property is the property of the
  111  decedent’s probate estate decedent and is subject to
  112  testamentary disposition or distribution under the laws of
  113  succession of this state. The decedent’s one-half of that
  114  property is not in the elective estate. For purposes of this
  115  section, the term “probate estate” means all property wherever
  116  located, that is subject to estate administration in any state
  117  of the United States or in the District of Columbia.
  118         (2)If not previously waived pursuant to s. 732.702, the
  119  right of a surviving spouse to assert a claim arising under ss.
  120  732.216-732.228, to any right, title, or interest in any
  121  property held by the decedent at the time of his or her death
  122  may be waived, wholly or partly, by a written contract,
  123  agreement, or waiver, signed by the surviving spouse, or any
  124  person acting on behalf of a surviving spouse, including, but
  125  not limited to, an attorney in fact; agent; guardian of the
  126  property; or personal representative, if the written contract,
  127  agreement, or waiver includes the following or substantially
  128  similar language:
  129  
  130         By executing this contract, agreement, or waiver, I
  131         intend to waive my right as a surviving spouse to
  132         assert a claim to any right, title, or interest in
  133         property held by the decedent at the time of the
  134         decedent’s death arising under the Florida Uniform
  135         Disposition of Community Property Rights at Death Act
  136         (ss. 732.216-732.228, Florida Statutes), wholly or
  137         partly, as provided herein.
  138  
  139         Section 5. Section 732.221, Florida Statutes, is repealed.
  140         Section 6. Section 732.2211, Florida Statutes, is created
  141  to read:
  142         732.2211Demands or disputes; statute of repose.—
  143         (1)(a)Any demand or dispute arising, wholly or partly,
  144  under ss. 732.216-732.228, regarding any right, title, or
  145  interest in any property held by the decedent or surviving
  146  spouse at the time of the decedent’s death shall be determined
  147  in an action for declaratory relief governed by the rules of
  148  civil procedure. Notwithstanding any other law, a complaint for
  149  such action must be filed within 2 years after the decedent’s
  150  death or be forever barred.
  151         (b)An action for declaratory relief instituted pursuant to
  152  this section is not a claim, as defined in s. 731.201, and is
  153  not subject to ss. 733.701-733.710.
  154         (2)The personal representative or curator has no duty to
  155  discover whether property held by the decedent or surviving
  156  spouse at the time of the decedent’s death is property to which
  157  ss. 732.216-732.228 apply, or may apply, unless a written demand
  158  is made by:
  159         (a)The surviving spouse or a beneficiary within 6 months
  160  after service of a copy of the notice of administration on the
  161  surviving spouse or beneficiary.
  162         (b)A creditor, except as provided in paragraph (c), within
  163  3 months after the time of the first publication of the notice
  164  to creditors.
  165         (c)A creditor required to be served with a copy of the
  166  notice to creditors, within the later of 30 days after the date
  167  of service on the creditor or the time under paragraph (b).
  168         (3)The rights of any interested person who fails to timely
  169  file an action for declaratory relief pursuant to this section
  170  are forfeited. The decedent’s surviving spouse, personal
  171  representative or curator, or any other person or entity that at
  172  any time is in possession of any property to which ss. 732.216
  173  732.228 apply, or may apply, shall not be subject to liability
  174  for any such forfeit rights. The decedent’s personal
  175  representative or curator may distribute the assets of the
  176  decedent’s estate without liability for any such forfeit rights.
  177         (4)This section does not affect any issue or matter not
  178  arising, wholly or partly, under ss. 732.216-732.228.
  179         Section 7. Section 732.223, Florida Statutes, is repealed.
  180         Section 8. Section 732.2231, Florida Statutes, is created
  181  to read:
  182         732.2231Protection of payors and other third parties.—
  183         (1)As used in this section, the term:
  184         (a)“Governing instrument” has the same meaning as in s.
  185  732.2025.
  186         (b)“Payor” means the decedent’s personal representative, a
  187  trustee of a trust created by the decedent, an insurer, business
  188  entity, employer, government, governmental agency or
  189  subdivision, or any other person authorized or obligated by law
  190  or a governing instrument to make payments.
  191         (c)“Person” has the same meaning as in s. 732.2025.
  192         (2)A property interest is subject to property rights under
  193  ss. 732.216-732.228, however, a payor or other third party is
  194  not liable for paying, distributing, or transferring such
  195  property to a beneficiary designated in a governing instrument,
  196  or for taking any other action in good faith reliance on the
  197  validity of a governing instrument.
  198         Section 9. Section 732.225, Florida Statutes, is amended to
  199  read:
  200         732.225 Acts of married persons.—Sections 732.216-732.228
  201  do not prevent married persons from severing or altering their
  202  interests in property to which these sections apply. The
  203  reinvestment of any property to which these sections apply in
  204  real property located in this state which is or becomes real or
  205  personal property held by tenants by the entirety or homestead
  206  property creates a conclusive presumption that the spouses have
  207  agreed to terminate the community property attribute of the
  208  property reinvested.
  209         Section 10. Subsection (1) of section 732.702, Florida
  210  Statutes, is amended to read:
  211         732.702 Waiver of spousal rights.—
  212         (1) The rights of a surviving spouse to an elective share,
  213  intestate share, pretermitted share, homestead, exempt property,
  214  family allowance, or to assert a claim under the Florida Uniform
  215  Disposition of Community Property Rights at Death Act as
  216  described in ss. 732.216-732.228, and preference in appointment
  217  as personal representative of an intestate estate or any of
  218  those rights, may be waived, wholly or partly, before or after
  219  marriage, by a written contract, agreement, or waiver, signed by
  220  the waiving party in the presence of two subscribing witnesses.
  221  The requirement of witnesses shall be applicable only to
  222  contracts, agreements, or waivers signed by Florida residents
  223  after the effective date of this law. Any contract, agreement,
  224  or waiver executed by a nonresident of Florida, either before or
  225  after this law takes effect, is valid in this state if valid
  226  when executed under the laws of the state or country where it
  227  was executed, whether or not he or she is a Florida resident at
  228  the time of death. Unless the waiver provides to the contrary, a
  229  waiver of “all rights,” or equivalent language, in the property
  230  or estate of a present or prospective spouse, or a complete
  231  property settlement entered into after, or in anticipation of,
  232  separation, dissolution of marriage, or divorce, is a waiver of
  233  all rights to elective share, intestate share, pretermitted
  234  share, homestead, exempt property, family allowance, or to
  235  assert a claim under the Florida Uniform Disposition of
  236  Community Property Rights at Death Act as described in ss.
  237  732.216-732.228, and preference in appointment as personal
  238  representative of an intestate estate, by the waiving party in
  239  the property of the other and a renunciation by the waiving
  240  party of all benefits that would otherwise pass to the waiving
  241  party from the other by intestate succession or by the
  242  provisions of any will executed before the written contract,
  243  agreement, or waiver.
  244         Section 11. Paragraph (g) is added to subsection (2) of
  245  section 733.212, Florida Statutes, to read:
  246         733.212 Notice of administration; filing of objections.—
  247         (2) The notice shall state:
  248         (g)That the personal representative or curator has no duty
  249  to discover whether any property held at the time of the
  250  decedent’s death by the decedent or the decedent’s surviving
  251  spouse is property to which the Florida Uniform Disposition of
  252  Community Property Rights at Death Act as described in ss.
  253  732.216-732.228 applies, or may apply, unless a written demand
  254  is made by the surviving spouse or a beneficiary as specified
  255  under s. 732.2211.
  256         Section 12. Subsection (1) of section 733.2121, Florida
  257  Statutes, is amended to read:
  258         733.2121 Notice to creditors; filing of claims.—
  259         (1) Unless creditors’ claims are otherwise barred by s.
  260  733.710, the personal representative shall promptly publish a
  261  notice to creditors. The notice shall contain the name of the
  262  decedent, the file number of the estate, the designation and
  263  address of the court in which the proceedings are pending, the
  264  name and address of the personal representative, the name and
  265  address of the personal representative’s attorney, and the date
  266  of first publication. The notice shall state that creditors must
  267  file claims against the estate with the court during the time
  268  periods set forth in s. 733.702, or be forever barred. The
  269  notice shall state that a personal representative or curator has
  270  no duty to discover whether any property held at the time of the
  271  decedent’s death by the decedent or the decedent’s surviving
  272  spouse is property to which the Florida Uniform Disposition of
  273  Community Property Rights at Death Act as described in ss.
  274  732.216-732.228, applies, or may apply, unless a written demand
  275  is made by a creditor as specified under s. 732.2211.
  276         Section 13. Subsection (1) of section 733.607, Florida
  277  Statutes, is amended to read:
  278         733.607 Possession of estate.—
  279         (1) Except as otherwise provided by a decedent’s will,
  280  every personal representative has a right to, and shall take
  281  possession or control of, the decedent’s property, except the
  282  protected homestead, but any real property or tangible personal
  283  property may be left with, or surrendered to, the person
  284  presumptively entitled to it unless possession of the property
  285  by the personal representative will be necessary for purposes of
  286  administration. The request by a personal representative for
  287  delivery of any property possessed by a beneficiary is
  288  conclusive evidence that the possession of the property by the
  289  personal representative is necessary for the purposes of
  290  administration, in any action against the beneficiary for
  291  possession of it. The personal representative shall take all
  292  steps reasonably necessary for the management, protection, and
  293  preservation of the estate until distribution and may maintain
  294  an action to recover possession of property or to determine the
  295  title to it. Notwithstanding anything in this section, the
  296  personal representative has no right to, and shall not knowingly
  297  take possession or control of, a surviving spouse’s one-half
  298  share of property to which the Florida Uniform Disposition of
  299  Community Property Rights at Death Act as described in ss.
  300  732.216-732.228, applies.
  301         Section 14. Except as otherwise expressly provided in this
  302  act, this act shall take effect upon becoming a law.

feedback