Haimo Law - Wills, Trusts, Probate, Business Planning and Asset Protection

Rules of Construction Under Florida’s Probate Statute

Rules of Construction Under Florida’s Probate Statute

 

 

PART VI

RULES OF CONSTRUCTION

 

732.6005 Rules of construction and intention.

732.601 Simultaneous Death Law.

732.603 Antilapse; deceased devisee; class gifts.

732.604 Failure of testamentary provision.

732.605 Change in securities; accessions; nonademption.

732.606 Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance.

732.607 Exercise of power of appointment.

732.608 Construction of terms.

732.609 Ademption by satisfaction.

732.611 Devises to multigeneration classes to be per stirpes.

732.615 Reformation to correct mistakes.

732.616 Modification to achieve testator’s tax objectives.

 

732.6005 Rules of construction and intention.—

(1) The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.

(2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.

 

732.601 Simultaneous Death Law.—Unless a contrary intention appears in the governing instrument:

(1) When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.

(2) When two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is insufficient evidence that the beneficiaries died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal parts as there are successive beneficiaries and the parts shall be distributed to those who would have taken if each designated beneficiary had survived.

(3) When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them so died, the property thus distributed shall be in the proportion that one bears to the number of joint tenants.

(4) When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

 

732.603 Antilapse; deceased devisee; class gifts.—

(1) Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator:

(a) Is dead at the time of the execution of the will;

(b) Fails to survive the testator; or

(c) Is required by the will or by operation of law to be treated as having predeceased the testator,

a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.

(2) When a power of appointment is exercised by will, unless a contrary intent appears in the document creating the power of appointment or in the testator’s will, if an appointee who is a grandparent, or a descendant of a grandparent, of the donor of the power:

(a) Is dead at the time of the execution of the will or the creation of the power;

(b) Fails to survive the testator; or

(c) Is required by the will, the document creating the power, or by operation of law to be treated as having predeceased the testator,

a substitute gift is created in the appointee’s surviving descendants who take per stirpes the property to which the appointee would have been entitled had the appointee survived the testator. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power.

(3) In the application of this section:

(a) Words of survivorship in a devise or appointment to an individual, such as “if he survives me,” or to “my surviving children,” are a sufficient indication of an intent contrary to the application of subsections (1) and (2). Words of survivorship used by the donor of the power in a power to appoint to an individual, such as the term “if he survives the donee,” or in a power to appoint to the donee’s “then surviving children,” are a sufficient indication of an intent contrary to the application of subsection (2).

(b) The term:

1. “Appointment” includes an alternative appointment and an appointment in the form of a class gift.

2. “Appointee” includes:

a. A class member if the appointment is in the form of a class gift.

b. An individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator.

3. “Devise” also includes an alternative devise and a devise in the form of a class gift.

4. “Devisee” also includes:

a. A class member if the devise is in the form of a class gift.

b. An individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator.

(4) This section applies only to outright devises and appointments. Devises and appointments in trust, including to a testamentary trust, are subject to s. 736.1106.

 

732.604 Failure of testamentary provision.—

(1) Except as provided in s. 732.603, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.

(2) Except as provided in s. 732.603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to the other residuary devisees in proportion to the interests of each in the remaining part of the residue.

 

732.605 Change in securities; accessions; nonademption.—

(1) If the testator intended a specific devise of certain securities rather than their equivalent value, the specific devisee is entitled only to:

(a) As much of the devised securities as is a part of the estate at the time of the testator’s death.

(b) Any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.

(c) Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity.

(d) Securities of the same entity acquired as a result of a plan of reinvestment.

(2) Distributions before death with respect to a specifically devised security, whether in cash or otherwise, which are not provided for in subsection (1) are not part of the specific devise.

 

732.606 Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance.—

(1) If specifically devised property is sold by a guardian of the property or if a condemnation award or insurance proceeds are paid to a guardian of the property, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by 1 year. The right of the specific devisee under this subsection is reduced by any right described in subsection (2).

(2) A specific devisee has the right to the remaining specifically devised property and:

(a) Any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest.

(b) Any amount of a condemnation award for the taking of the property unpaid at death.

(c) Any proceeds unpaid at death on fire or casualty insurance on the property.

(d) Property owned by the testator at death as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation.

 

732.607 Exercise of power of appointment.—A general residuary clause in a will, or a will making general disposition of all the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power.

 

732.608 Construction of terms.—The laws used to determine paternity and relationships for the purposes of intestate succession apply when determining whether class gift terminology and terms of relationship include adopted persons and persons born out of wedlock.

 

732.609 Ademption by satisfaction.—Property that a testator gave to a person in the testator’s lifetime is treated as a satisfaction of a devise to that person, in whole or in part, only if the will provides for deduction of the lifetime gift, the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purposes of part satisfaction, property given during the testator’s lifetime is valued at the time the devisee came into possession or enjoyment of the property or at the time of the death of the testator, whichever occurs first.

 

732.611 Devises to multigeneration classes to be per stirpes.—Unless the will provides otherwise, all devises to descendants, issue, and other multigeneration classes shall be per stirpes.

 

732.615 Reformation to correct mistakes.—Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

 

732.616 Modification to achieve testator’s tax objectives.—Upon application of any interested person, to achieve the testator’s tax objectives the court may modify the terms of a will in a manner that is not contrary to the testator’s probable intent. The court may provide that the modification has retroactive effect.