The Uniform Principle and Income Act Committee initiated a review of the allocation of expenses between life tenants and remainder-men, the impact of an
elective share trust, and jurisdiction over discretionary powers.
2) The early version of these statutes, sometimes referred to as the "original"
elective share statutes, provided that the surviving spouse receives a portion (usually one-third) "of the decedent's estate.
To overcome these deficiencies, most states allow a surviving spouse to claim an
elective share that is based upon a fraction of the decedent spouse's augmented estate.
Technically, the mere possibility that a CRT's assets could be used to satisfy a spouse's
elective share would disqualify it.
However, two examples that immediately come to mind are the
elective share computation and the effect of homestead status on intestacy.
The following [begin strikethrough]must be[end strikethrough]are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of
elective share and contribution, and for revocation of probate of a will.
Effective June 28, 2005, the trustee of a CRT must retain a copy of a waiver by the spouse of his or her
elective share or right in the CRT, if permitted by state law.
Similarly, the stopgap rights of a disinherited spouse, or the
elective share protections, apply as well.
Thus, the proposed regulations provide that substantially separate and independent shares of different beneficiaries are to be treated as separate estates for purposes of computing DNI; further, a surviving spouse's statutory
elective share is a separate share.
Elective Share, Homestead, and Statutory Entitlements under Florida Law
An election to take the
elective share may be filed by the surviving spouse, or on behalf of the surviving spouse by an attorney-in-fact or guardian of the property of the surviving spouse.
If the well spouse dies first and does not leave the surviving spouse enough to qualify as that spouse's
elective share (the greater of $50,000 or one-third of the estate), the local Medicaid agency may start a court proceeding to have a guardian appointed for the surviving institutionalized spouse so that the guardian can then exercise that spouse's right of election.
