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 [Apportionment was discussed in Part V]. 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 [§732.2085] 

Subsection (1): Only “direct recipients”[1] of property included in the elective estate and the beneficiaries of the decedent’s probate estate or of any trust that is a direct recipient, are liable to contribute toward satisfaction of the elective share. §732.2085(1), F.S. Comment: This term includes both the decedent’s probate estate and the trustee (as opposed to trust beneficiaries) of the decedent’s revocable trust.

Subsection (1)(a): Within each of the classes described in §732.2075(2)(b) and (c), each direct recipient is liable in an amount equal to the value, as determined under §732.2055, of the proportional part of the liability for all members of the class. §732.2085(1)(a), F.S. Comment: The “decedent’s probate estate and revocable trusts” are excluded from this subsection because the personal representative has access to these funds to pay the unsatisfied balance of the elective share; therefore, there is no need to seek contribution from the direct recipients under§732.2075(2)(a)

Comment: Determination of the direct recipient’s proportional liability is a two step process: first, the contribution amount for the entire class is determined by aggregating the elective estate values of all property interests within the class; and second, the total contribution required from the class is then apportioned among the direct recipients based on their proportionate share of assets within the class.

Example: The total value of all property for elective share purposes in Class 2 (e.g., joint account holders, life insurance beneficiaries, and retirement account beneficiaries) is $400,000 and the total contribution due from Class 2 is $100,000.  Beneficiary, who was a member of Class 2 by virtue of being named beneficiary under a POD account, received a distribution from the account in the amount of $100,000. The contribution due from Beneficiary would be $25,000 computed as follows:  $100,000 x ($100,000 ÷ $400,000) = $25,000.

Subsection (1)(b): Trust and probate estate beneficiaries who receive a distribution of principal after the decedent’s death are liable in an amount equal to the value of the principal distributed to them multiplied by the “contribution percentage”[2] of the distributing trust or estate. §732.2085(1)(b), F.S.  Comment: A beneficiary of a trust that is itself a direct recipient is liable for contribution in satisfaction of the elective share only if the beneficiary receives a distribution of principal from the trust. In that event, the distribution to the beneficiary comes burdened with the same liability as the property had while in the hands of the trustee.

Example: Beneficiary receives a partial distribution of $25,000 after the decedent’s death as a residuary beneficiary under the decedent’s revocable trust. The probate estate is liable for total contribution toward the elective share in the amount of $100,000, none of the probate estate’s elective share liability has been satisfied, and the value of the probate estate for elective share purposes is $200,000. The amount due from Beneficiary would be $12,500 computed as follows:  $25,000 x ($100,000 ÷ $200,000) = $12,500

Subsection (2): In lieu of paying the amount for which they are liable, beneficiaries who have received a distribution of property included in the elective estate and direct recipients other than the decedent’s probate estate or revocable trusts, may: (a) Contribute a proportional part of all property received; or (b) With respect to any property interest received before the date of the court’s order of contribution: 1. Contribute all of the property; or 2. If the property has been sold or exchanged prior to the date on which the spouse’s election is filed, pay an amount equal to the value of the property, less reasonable costs of sale, on the date it was sold or exchanged.

ENFORCEMENT:

The Personal Representative shall collect contribution from the recipients of the elective estate as provided in the court’s order. §732.2145(2), F.S.

[1] “Direct recipient” is defined in §732.2025(1), F.S.  

[2] “Contribution percentage” is defined in §732.2085(1)(b), F.S.