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Sunday, June 25, 2006


Ralph E. Davis passed away. In his estate proceedings, his surviving spouse claimed her elective share of his estate. Under Florida law, a surviving spouse can elect to take a fixed percentage of his or her spouse's assets, instead of receiving what the deceased spouse left for the surviving spouse under a Last Will. Under the applicable law and the residuary clause of the Last Will, Mr. Davis' remaining assets after the wife's elective share would pass under Florida intestacy law (which is an ordering list of who receives assets, based generally on closeness of familial relationship, that exists under statutory law).

Mr. Davis' Last Will did not specifically provide for what would happen if his wife claimed her elective share. The trial court ruled that since he did not address this issue, it could take evidence on what Mr. Davis' intent was as to what would happen in this circumstance, and rewrite the Will to provide for the passage of the remaining assets in accordance with this determined intent.

Was this a reasonable approach? Maybe. Was this an approach allowable under Florida law? Nope. The 2nd Circuit Court of Appeals, in reviewing the trial court decision, started with the rule:

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done. . . . It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable. In re Estate of Barker, 448 So. 2d 28, 31-32 (Fla. 1st DCA 1984) (quoting 18 Fla. Jur. 2d Decedent's Property § 358, at 216).
Applying this rule, the Court of Appeals reversed the trial court and its made up determination of how to pass the assets, and directed that the assets pass under Florida's intestacy rules, as required by the Last Will and applicable law.

Owens and Clement v. Estate of Davis, 2nd DCA, June 23, 2006.

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