Florida Court Allows Elective Share Offered as an Alternative to Statutory Minimum

The decedent’s trust made a gift of cash to his surviving spouseconditioned on her disclaiming her interest in a trust created under thetrust agreement and making a valid disclaimer of her right of election. Thespouse brought a declaratory judgment action requesting a judgment saying theelection provisions were invalid under Florida law. Florida Law invalidates anyprovision in a trust instrument “purporting to penalize any interested personfor contesting the trust instrument” or instituting proceedings relating to thetrust or to the trust assets. 

The court in Dinkins v. Dinkins, No. 5D12–1292, 2013 WL3834371 (Fla. Dist. Ct. App. July 26, 2013), held that a clause providing analternative to a statutory minimum benefit, here the elective share, is not aprohibited penalty clause because the beneficiary remains free to reject thealternative offered for any reason.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.