If the assets the surviving spouse received from the decedent or will receive from the decedent on death do not completely satisfy the spouse’s elective share, the unsatisfied balance is allocated into categories/classes and “apportioned” among the direct recipients of the remaining elective estate according to a priority system. The direct recipients are liable to “contribute” their share of the remaining elective estate toward satisfaction of the elective share in an amount equal to the value of their proportional liability in each category/class. Contribution will be discussed in Part VI.

APPORTIONMENT [§732.2075(2)-(7)]

Subsection (1): This subsection consists of the assets the surviving spouse received from the decedent or will receive from the decedent on death. Refer to Part IV of this series.

Subsection (2): If, after the application of subsection (1), the elective share is not fully satisfied, the unsatisfied balance shall be allocated entirely to one category/class of “direct recipients”[1] of the remaining elective estate and apportioned among those recipients, and if the elective share amount is not fully satisfied, to the next category/class of direct recipients, in the following order of priority, until the elective share amount is satisfied:

(a) Class 1. – The decedent’s probate estate and revocable trusts. §732.2075(2)(a), F.S. Comment: The personal representative can use these funds toward satisfaction of the elective share without seeking contribution from the direct recipients.

(b) Class 2. – Recipients of property interests included in the elective estate under §732.2035(2), (3), or (6) and, to the extent the decedent had at the time of death the power to designate the recipient of the property, property interests, included under §732.2035(5) and (7).  §732.2075(2)(b), F.S.  Exception: protected charitable interests.[2]

(c) Class 3. – Recipients of all other property interests included in the elective estate. §732.2075(2)(c), F.S.  Exception: protected charitable interests.

Subsection (3): If, after the application of §732.2075(1) and (2) the elective share amount is not fully satisfied, the additional amount due to the surviving spouse shall be determined and satisfied from property described in §732.2075(1)(a) and (b) which passes or which has passed in a trust in which the surviving spouse has a beneficial interest. Exception: elective share trusts and qualified special needs trusts. §732.2075(3), F.S.

Subsection (4): If, after the application of §732.2075(1), (2), and (3) the elective share is not fully satisfied, any remaining unsatisfied balance shall be satisfied from direct recipients of “protected charitable lead interests”[3], but only to the extent and at such times that contribution is permitted without disqualifying the charitable interest in that property for a deduction under the United States gift tax laws. §732.2075(4), F.S. Comment: Essentially, this category includes inter vivos transfers to a charitable lead trust. Contribution can be required from such a trust, but only after the expiration of the lead interest.

Subsections (5)-(7): These subsections provide that the payment of the unsatisfied balance, which may be paid in cash or in kind, is to be charged against the interests of the beneficiaries of the probate estate and revocable trust under the normal rules of abatement, subject to the added proviso that all estate and trust beneficiaries are to be viewed as taking under a common instrument. In this way, payment of the unsatisfied balance will be charged against specific and general devisees under the will and trust only if the residuary portions of both are inadequate to meet the full elective share contribution.

[1] “Direct recipient” is defined in §732.2025(1), F.S. Comment: The term includes both the decedent’s probate estate and the trustee (as opposed to trust beneficiaries) of any property held in trust.

[2] “Protected charitable interest” is defined in §732.2075(2)(c), F.S. Comment: The term encompasses outright charitable transfers as well as transfers to charitable remainder or lead trusts, provided in each case, that the transfer qualified for the gift tax (as opposed to the estate tax) charitable deduction at the time it was made.

[3] “Protected charitable lead interest” is defined in §732.2075(4), F.S.