Bill Text: FL S1064 | 2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

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-Introduced.html

---

       Florida Senate - 2024                                    SB 1064
       
       
        
       By Senator Powell
       
       
       
       
       
       24-00455A-24                                          20241064__
    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  petitions and orders affecting or describing real property,
   62  final orders, orders of final discharge, and orders of
   63  guardianship filed in the clerk’s office. No other petitions,
   64  pleadings, papers, or other orders relating to probate matters
   65  shall be recorded except on the written direction of the court.
   66  The direction may be in the order by incorporation in the order
   67  of the words “To be recorded,” or words to that effect. Failure
   68  to record an order or a judgment 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 intend to
  131  waive my right as a surviving spouse to assert a claim to any
  132  right, title, or interest in property held by the decedent at
  133  the time of the decedent’s death arising under the Florida
  134  Uniform Disposition of Community Property Rights at Death Act
  135  (ss. 732.216-732.228, Florida Statutes), wholly or partly, as
  136  provided herein.”
  137         Section 5. Section 732.221, Florida Statutes, is repealed.
  138         Section 6. Section 732.2211, Florida Statutes, is created
  139  to read:
  140         732.2211 Demands or disputes; statute of repose.—
  141         (1)(a) Any demand or dispute arising, wholly or partly,
  142  under ss. 732.216-732.228, regarding any right, title, or
  143  interest in any property held by the decedent or surviving
  144  spouse at the time of the decedent’s death shall be determined
  145  in an action for declaratory relief governed by the rules of
  146  civil procedure. Notwithstanding any other law, a complaint for
  147  such action must be filed within 2 years after the decedent’s
  148  death or be forever barred.
  149         (b) An action for declaratory relief instituted pursuant to
  150  this section is not a claim, as defined in s. 731.201, and is
  151  not subject to the provisions of s. 733.702(1) or s. 733.710.
  152         (2) The personal representative or curator has no duty to
  153  discover whether property held by the decedent or surviving
  154  spouse at the time of the decedent’s death is property to which
  155  ss. 732.216-732.228 apply, or may apply, unless a written demand
  156  is made by:
  157         (a) The surviving spouse or a beneficiary within 6 months
  158  after service of a copy of the notice of administration on the
  159  surviving spouse or beneficiary.
  160         (b) A creditor, except as provided in paragraph (c), within
  161  3 months after the time of the first publication of the notice
  162  to creditors.
  163         (c) A creditor required to be served with a copy of the
  164  notice to creditors, within the later of 30 days after the date
  165  of service on the creditor or the time under paragraph (b).
  166         (3) The rights of any interested person who fails to timely
  167  file an action for declaratory relief pursuant to this section
  168  are forfeited. The decedent’s surviving spouse, personal
  169  representative or curator, or any other person or entity that at
  170  any time is in possession of any property to which ss. 732.216
  171  732.228 apply, or may apply, shall not be subject to liability
  172  for any such forfeit rights. The decedent’s personal
  173  representative or curator may distribute the assets of the
  174  decedent’s estate without liability for any such forfeit rights.
  175         (4) This section does not affect any issue or matter not
  176  arising, wholly or partly, under ss. 732.216-732.228.
  177         Section 7. Section 732.223, Florida Statutes, is repealed.
  178         Section 8. Section 732.2231, Florida Statutes, is created
  179  to read:
  180         732.2231 Protection of payors and other third parties.—
  181         (1) As used in this section, the term:
  182         (a) “Governing instrument” has the same meaning as in s.
  183  732.2025.
  184         (b) “Payor” means the decedent’s personal representative, a
  185  trustee of a trust created by the decedent, an insurer, business
  186  entity, employer, government, governmental agency or
  187  subdivision, or any other person authorized or obligated by law
  188  or a governing instrument to make payments.
  189         (c) “Person” has the same meaning as in s. 732.2025.
  190         (2) A property interest is subject to property rights under
  191  ss. 732.216-732.228, however, a payor or other third party is
  192  not liable for paying, distributing, or transferring such
  193  property to a beneficiary designated in a governing instrument,
  194  or for taking any other action in good faith reliance on the
  195  validity of a governing instrument.
  196         Section 9. Section 732.225, Florida Statutes, is amended to
  197  read:
  198         732.225 Acts of married persons.—Sections 732.216-732.228
  199  do not prevent married persons from severing or altering their
  200  interests in property to which these sections apply. The
  201  reinvestment of any property to which these sections apply in
  202  real property located in this state which is or becomes real or
  203  personal property held by tenants by the entirety or homestead
  204  property creates a conclusive presumption that the spouses have
  205  agreed to terminate the community property attribute of the
  206  property reinvested.
  207         Section 10. Subsection (1) of section 732.702, Florida
  208  Statutes, is amended to read:
  209         732.702 Waiver of spousal rights.—
  210         (1) The rights of a surviving spouse to an elective share,
  211  intestate share, pretermitted share, homestead, exempt property,
  212  family allowance, or to assert a claim under the Florida Uniform
  213  Disposition of Community Property Rights at Death Act as
  214  described in ss. 732.216-732.228, and preference in appointment
  215  as personal representative of an intestate estate or any of
  216  those rights, may be waived, wholly or partly, before or after
  217  marriage, by a written contract, agreement, or waiver, signed by
  218  the waiving party in the presence of two subscribing witnesses.
  219  The requirement of witnesses shall be applicable only to
  220  contracts, agreements, or waivers signed by Florida residents
  221  after the effective date of this law. Any contract, agreement,
  222  or waiver executed by a nonresident of Florida, either before or
  223  after this law takes effect, is valid in this state if valid
  224  when executed under the laws of the state or country where it
  225  was executed, whether or not he or she is a Florida resident at
  226  the time of death. Unless the waiver provides to the contrary, a
  227  waiver of “all rights,” or equivalent language, in the property
  228  or estate of a present or prospective spouse, or a complete
  229  property settlement entered into after, or in anticipation of,
  230  separation, dissolution of marriage, or divorce, is a waiver of
  231  all rights to elective share, intestate share, pretermitted
  232  share, homestead, exempt property, family allowance, or to
  233  assert a claim under the Florida Uniform Disposition of
  234  Community Property Rights at Death Act as described in ss.
  235  732.216-732.228, and preference in appointment as personal
  236  representative of an intestate estate, by the waiving party in
  237  the property of the other and a renunciation by the waiving
  238  party of all benefits that would otherwise pass to the waiving
  239  party from the other by intestate succession or by the
  240  provisions of any will executed before the written contract,
  241  agreement, or waiver.
  242         Section 11. Paragraph (g) is added to subsection (2) of
  243  section 733.212, Florida Statutes, to read:
  244         733.212 Notice of administration; filing of objections.—
  245         (2) The notice shall state:
  246         (g) That the personal representative or curator has no duty
  247  to discover whether any property held at the time of the
  248  decedent’s death by the decedent or the decedent’s surviving
  249  spouse is property to which the Florida Uniform Disposition of
  250  Community Property Rights at Death Act as described in ss.
  251  732.216-732.228 applies, or may apply, unless a written demand
  252  is made by the surviving spouse or a beneficiary as specified
  253  under s. 732.2211.
  254         Section 12. Subsection (1) of section 733.2121, Florida
  255  Statutes, is amended to read:
  256         733.2121 Notice to creditors; filing of claims.—
  257         (1) Unless creditors’ claims are otherwise barred by s.
  258  733.710, the personal representative shall promptly publish a
  259  notice to creditors. The notice shall contain the name of the
  260  decedent, the file number of the estate, the designation and
  261  address of the court in which the proceedings are pending, the
  262  name and address of the personal representative, the name and
  263  address of the personal representative’s attorney, and the date
  264  of first publication. The notice shall state that creditors must
  265  file claims against the estate with the court during the time
  266  periods set forth in s. 733.702, or be forever barred. The
  267  notice shall state that a personal representative or curator has
  268  no duty to discover whether any property held at the time of the
  269  decedent’s death by the decedent or the decedent’s surviving
  270  spouse is property to which the Florida Uniform Disposition of
  271  Community Property Rights at Death Act as described in ss.
  272  732.216-732.228, applies, or may apply, unless a written demand
  273  is made by a creditor as specified under s. 732.2211.
  274         Section 13. Subsection (1) of section 733.607, Florida
  275  Statutes, is amended to read:
  276         733.607 Possession of estate.—
  277         (1) Except as otherwise provided by a decedent’s will,
  278  every personal representative has a right to, and shall take
  279  possession or control of, the decedent’s property, except the
  280  protected homestead, but any real property or tangible personal
  281  property may be left with, or surrendered to, the person
  282  presumptively entitled to it unless possession of the property
  283  by the personal representative will be necessary for purposes of
  284  administration. The request by a personal representative for
  285  delivery of any property possessed by a beneficiary is
  286  conclusive evidence that the possession of the property by the
  287  personal representative is necessary for the purposes of
  288  administration, in any action against the beneficiary for
  289  possession of it. The personal representative shall take all
  290  steps reasonably necessary for the management, protection, and
  291  preservation of the estate until distribution and may maintain
  292  an action to recover possession of property or to determine the
  293  title to it. Notwithstanding anything in this section, the
  294  personal representative has no right to, and shall not knowingly
  295  take possession or control of, a surviving spouse’s one-half
  296  share of property to which the Florida Uniform Disposition of
  297  Community Property Rights at Death Act as described in ss.
  298  732.216-732.228, applies.
  299         Section 14. Except as otherwise expressly provided in this
  300  act, this act shall take effect upon becoming a law.