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

In In Re Estate of Rasor, a March 30, 2022 opinion from the Florida Fourth District Court of Appeal, the court determined whether the probate court properly struck an objection to a surviving spouse’s election to take an elective share because the objector missed the deadline to object under Florida law.

The Facts of In Re Estate of Rasor

Edward Rasor’s surviving spouse, Virginia, petitioned to establish and probate Edward’s lost or destroyed will.  Virginia alleged that Edward’s son, Gregg, was qualified to serve as the personal representative of Edward’s estate.  On the same day that Virginia petitioned to probate Edward’s lost or destroyed will, she filed an “Election to Take Elective Share” of Edward’s estate, and a “Notice of Election to Take Elective Share.”  She served both documents on Gregg and his siblings.

Virginia then died.

Gregg petitioned for administration of Edward’s estate.  On April 23, 2018, the Florida probate court admitted the will to probate and appointed Gregg as personal representative.

On May 11, 2018, Gregg filed both the notice of administration and Virginia’s notice to take elective share. That same day, he also filed proof of service of these documents on himself, individually as an interested person, and on his siblings.

Twenty days later, Gregg objected to Virginia’s election to take an elective share, alleging that she was unduly influenced when she made her election.

Virginia’s personal representative, Jay Dick, argued that Virginia’s estate was entitled to an elective share of Edward’s estate because Virginia timely filed her election before she died, and also because Gregg failed to file his objection within 20 days of service of Virginia’s election and therefore waived his objection to Virginia’s election.

The Florida probate court agreed with Virginia’s personal representative that the objection was untimely and struck the objection.  The probate court found that Virginia’s estate was entitled to an elective share of Edward’s estate.

What Is the Florida Elective Share?

In Florida, “[t]he surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.” § 732.201, Fla. Stat. (2017).

Generally, the Florida elective share provides that a surviving spouse receives no less than 30% of the deceased spouse’s assets.  We have written extensively about the Florida elective share – read How Is Florida’s Elective Share Calculated; Florida Surviving Spouse’s Elective Share Earns Interest, Not Charged Fees; and, Florida’s Elective Share, a Prenuptial Agreement, and a Revocable Trust.

What Is the Deadline To Object To an Election To Take Elective Share In Florida?

The timing and procedure for a Florida surviving spouse to take an elective share is governed by section 732.2135, Florida Statutes (2017), and Florida Probate Rule 5.360.

A surviving spouse has six months from the service of the Notice of Administration to file an election to take elective share, or two years from Decedent’s death, whichever is earlier.  See § 732.2135 (1).

A surviving spouse can also seek an extension of time to file, but must timely petition for the extension. Read: Timely Petition For Extension of Time Tolls Deadline To File Election To Take Elective Share In Florida.

Upon receipt of an election to take an elective share, rule 5.360(b)(3) requires the personal representative to serve notice of the election on all interested persons within twenty days. And under rule 5.360(b)(4), interested parties may file an objection within twenty days after the personal representative serves them notice of the election.

The timing of Gregg’s objection to Virginia’s election was the issue in this case, and a close examination by the Florida appellate court details why Gregg’s objection to the elective share elections was timely.

The Clock Does Not Start To Run For Notice and Objection To Elective Share Election Until Appointment As Personal Representative

The Florida appellate court first determined that the clock did not start to run regarding service of the election to take elective share on interested parties, and any objections to the notice, until the appointment of Gregg as personal representative:

Gregg acknowledged receipt of Virginia’s election on November 9, 2017. Had Gregg been appointed as Edward’s personal representative at that time, he would have had twenty days to serve notice of the election on the interested parties and an additional twenty days after service of the notice to file an objection. See Fla. Prob. R. 5.2405(b)(1) (“[A]ny notice shall be deemed as having been served on the personal representative on . . . the date on which the person acknowledges in writing receipt of the notice[.]”).

But because Gregg had not been appointed as Edward’s personal representative yet, the clock did not start to run when Virginia served him with her notice of election. Gregg’s duties as personal representative did not begin until the time of his appointment nearly six months later. See § 733.601, Fla. Stat. (2017) (“The duties and powers of a personal representative commence upon appointment.”). So Gregg was not required to object within twenty-days of receiving Virginia’s notice of election in November 2017.

Instead, Gregg needed to act when he was appointed as Edward’s personal representative. As personal representative, Gregg needed to “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.” Fla. Prob. R. 5.360(b)(3). In the notice of election, Gregg had to notify interested persons, among other things, that “objections to the election must be served within 20 days after service of the copy of the notice of election.” See Fla. Prob. R. 5.360(b)(3)(B).

 

And in this case, the personal representative did exactly what he needed to do under the timelines set forth under Florida law regarding service of the election to take elective share and to object thereto:

Within twenty days of his appointment as Edward’s personal representative, Gregg served Virginia’s election on himself and his siblings, complying with rule 5.360(b)(3)’s service requirements by the personal representative. Gregg’s compliance with rule 5.360(b)(3) initiated the twenty-day period for interested persons to object to the election under rule 5.360(b)(4). Again, under rule 5.360(b)(4), Gregg timely acted. Now acting in his individual capacity, Gregg served an objection to Virginia’s election within twenty days of service of the notice by the personal representative.

Therefore, because Gregg served his objection to Virginia’s election within twenty days of service of the notice of election by the personal representative, his objection was timely.  The Florida appellate court reversed the probate court’s order striking his objection to the election to take elective share.

Your Florida probate lawyer can make sure that you comply with all deadlines and timelines under Florida probate law, including those surrounding the right to take an elective share, and to object to an election.

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Payment of Creditors, Expenses And Beneficiaries
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