The Revocable Trust and the Elective Share
Ruth, a Florida resident, executed a will in 2019 leaving her entire estate to her two children. In 2021 she created a revocable inter vivos trust, funded it with $900,000 of securities, and named the same two children as beneficiaries. Her will's residuary clause was never amended; the pour-over language in the will was added by a codicil in 2022 directing all residue to the trust. Ruth dies in 2024 survived by her second husband, Dale, whom she married in 2018. Dale was not named in the will or the trust. At death, the probate estate holds a homestead worth $400,000 (Ruth's primary residence, titled solely in her name, with no minor children) and $100,000 in a checking account. The trust holds $900,000. Dale has not remarried and has no other assets of significance.
1. Dale asks whether he can reach the trust assets. Identify the doctrine that governs and explain the analytical steps a Florida court would take to determine what Dale is entitled to.
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The governing doctrine is the elective share under Fla. Stat. ch. 732. The surviving spouse may elect to take a share of the elective estate rather than what the decedent provided. Key analysis:
- Eligibility. Dale was married to Ruth at death and has not remarried; he is an eligible surviving spouse.
- Composition of the elective estate. Under Fla. Stat. § 732.2035, the elective estate includes the probate estate, the decedent's interest in jointly held property, certain revocable trust assets, and other specified transfers. Because Ruth's trust was revocable at death, the $900,000 is pulled into the elective estate.
- Homestead treatment. The homestead passes outside probate but is generally included in the elective estate for this computation (subject to the specific statutory carve-outs). The $400,000 is therefore counted.
- Compute the share. The elective share is 30% of the elective estate if the decedent had no lineal descendants, but if she has descendants the share is a sliding scale beginning at 30% and decreasing with the length of the marriage. Ruth has two children, so the court applies the statutory percentage for a marriage of approximately six years - roughly 30% at the top of the schedule reduced by the statutory formula.
- Satisfaction and apportionment. The share is satisfied first from the probate estate and then, if insufficient, apportioned among the other included assets - including the revocable trust - under § 732.2075.
Conclusion: Dale can reach the trust assets, but only to the extent the elective share exceeds the value of what he already receives through probate and any other included property.
2. Dale also asks about the homestead. Explain how homestead status affects the outcome and whether the two children have any defense.
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Two separate homestead rules are in play:
(a) Descent and devise restrictions. Under Fla. Const. art. X, § 4, a homestead cannot be devised if the decedent is survived by a spouse or minor child. Ruth is survived by a spouse (Dale) but no minor children. Because Dale survives, the homestead cannot pass by will to the children free of Dale's interest; Dale is entitled to a life estate in the homestead (with a vested remainder in the lineal descendants) unless he elects otherwise. The children therefore cannot take the residence outright.
(b) Elective share inclusion. The homestead is counted in the elective estate for purposes of computing the 30%-sliding-scale share, so it affects the size of Dale's elective share as well as being a separate source of protection.
Defense analysis. The children's only meaningful defense is that Dale's elective share should be reduced by the value of the homestead life estate he already receives, to avoid double counting. Florida law apportions the elective share against assets already passing to the spouse. So the children's argument is not that the trust is untouchable, but that Dale's recovery from the trust should be net of the homestead interest. The court will compute the elective share, credit the value of the life estate and any probate receipts, and charge the shortfall against the revocable trust.