In those cases where a client wants to provide for a spouse that is not the parent of the client’s children (at the very least to avoid an elective-share claim), Florida law specifically provides a very useful tool in the form of an “elective share trust.” Similar to the QTIP trust now familiar to most estate planners, an elective share trust allows a client to provide for a surviving spouse for life – but retain control over the ultimate disposition of these assets when the surviving spouse passes away. This type of trust is also effective as a “stand by” mechanism to capture any additional estate assets in trust that may be necessary to satisfy an elective share claim. For example:
Despite any other provision of this Trust Agreement, if my wife or her designated representative elects the Elective Share in my estate, any trust created under this Trust and not qualifying for the federal marital deduction in which my wife is a beneficiary will be divided into two parts, with the least amount of that trust as is needed to satisfy the balance of the Elective Share unpaid by other sources under Section 732.2075 of the Florida Statutes being held as a separate trust (the “Elective Share Trust”) and administered so as to qualify under Section 732.2025 of the Florida Statutes (including the right for my wife to require the Trustee to make the trust property productive or to convert it within a reasonable time). Unless the original trust already provides for a qualifying invasion power or a qualifying power of appointment for my wife, the Personal Representative in its discretion may elect to create an invasion power for the Elective Share Trust for purposes of valuation under Section 732.2095 of the Florida Statutes. If an invasion power is created, the Personal Representative shall designate that such a power is to apply by filing a notice with my wife and in the probate court within 6 months after the election by my wife of the Elective Share.