Timely Petition For Extension Of Time Tolls Deadline To File Election To Take Elective Share In Florida

In Futch v. Haney, an October 13, 2021 opinion from Florida’s Second District Court of Appeal, the Court determined that the surviving spouse’s petitions for extension of time to file her election for elective share were timely under Florida law, and reversed the order of probate court denying her petitions and sustaining the objections to her election.

The Facts of Futch v. Haney

Decedent Alvin Futch died in April 2019.  Tom Haney filed a petition for administration in June 2019, and was appointed as personal representative of the estate in July 2019.  The notice of administration was filed on August 14, 2019.

On January 6, 2020, Mary Jo Futch, Decedent’s surviving spouse, filed a petition for extension of time to make an election for elective share.  Futch requested a three month extension until April 8, 2020.  As grounds for the request, Futch said that she had recently received documents relating to the calculation of the elective share and she needed time to review them.

On April 7, 2020, Futch filed a second petition for extension of time to make an election for elective share.  Futch cited to limitations imposed by COVID-19, and requested an extension until June 8, 2020 or “a date when the [c]ourt resumes in-person probate proceedings.”  On June 9, 2020, Futch filed a third petition for extension of time to make an election for Florida elective share.

On June 10, 2020, Futch filed her election to take elective share.

The Florida personal representative, the trustees of the decedent’s trust, and the beneficiaries all filed objections to Futch’s election.  The Florida probate court denied Futch’s June 9, 2020 petition for extension on the grounds that it was untimely filed.

What Is the Deadline To File an Election To Take Elective Share Under Florida Law?

Florida’s elective share is one of the most important surviving spouse rights provided by Florida law.  Filing the election to take elective share is subject to a 6 month deadline from the service of the notice of administration, or within two years from decedent’s death, whichever is earlier.  Section 732.2135(1) states:

(1) Except as provided in subsection (2), the election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.

Here, Futch was required to file her election to take elective share within six months after the date of service of Notice of Administration (served on August 14, 2019).  Read about other key Deadlines and Timelines in Florida Probate.

When Can the Deadline To File an Election To Take Elective Share Be Extended?

Section 732.2135 (2) provides that:

(2) Within the period provided in subsection (1), or

40 days after the date of termination of any proceeding

which affects the amount the spouse is entitled to receive

under s. 732.2075(1), whichever is later, but no more

than 2 years after the decedent’s death, the surviving

spouse or an attorney in fact or guardian of the property

of the surviving spouse may petition the court for an

extension of time for making an election. For good cause

shown, the court 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.

Under section 732.2135(2), Florida statutes, Futch was required to file any petition for extension of time to elect to take an elective share within six months from August 14, 2019.  Futch timely filed a petition for extension within the window.

A Timely Petition For Extension Tolls The Time For Making The Election To Take Elective Share

Section 732.2135(4) states:

(4) A petition for an extension of the time for making

the election or for approval to make the election shall toll

the time for making the election.

Here, because Futch timely filed a petition for extension to elect to take the elective share, the time for making the election was tolled.

No Time Limitation and No Hearing Required To Toll Time To File Election For Elective Share

The appellate court ruled strongly in favor of the surviving spouse, reading the plain language of the statute to require only a timely filed petition or petitions to extend the time to elect to take an elective share under Florida law:

The plain language of the statute does not limit the amount of

time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely

subsequent petition seeking additional time, and it does not require

a hearing or ruling on a petition in order for the time to be tolled.

Subsection (2) addresses when a trial court may grant an extension

(for good cause shown) and provides that if the trial court grants

the extension, the election must be filed within the time allowed by

the extension. But subsection (2) does not require the trial court to

grant a petition for extension before the time is tolled; such a

reading would render meaningless the tolling provision in

subsection (4).

The Court concluded that the tolling provision in the statute applied to Futch’s petitions for extension of time to elect to take the elective share.  Because Futch’s election was filed during the tolling period, the election was timely.

The Court reversed the order denying Futch’s petition and sustaining the objections to her election and remanded for further proceedings.  For more articles regarding Florida’s elective share, read How is Florida’s Elective Share Calculated? and Florida Surviving Spouse’s Elective Share Earns Interest, Not Charged Fees.

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