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characteristics that justify their exclusion from the subchapter
J estate. The exclusion of the Florida elective share from the
subchapter J distribution rules is confirmed by its lack of any
legal or economic participation in estate income, which, under
Florida law, accrues in this case for the ultimate benefit of the
estate’s residuary beneficiaries.
1. Comparison of Elective Share with Statutory Dower
Florida statutory dower,7 from 1933 until its replacement in
1975 by the Florida elective share, was a widow's (changed to
“surviving spouse” in 1973) one-third interest in “fee simple of
the real property which was owned by her husband at the time of
his death” and an absolute one-third interest in all “personal
property owned by her husband at the time of his death”. Fla.
Stat. Ann. sec. 731.34 (West 1964) (repealed 1974). The widow
was also entitled to “mesne profits” on statutory dower, or
income earned by the dower interest from the date of the election
to take dower until the date of actual payment. Fla. Stat. Ann.
sec. 733.12 (West 1964) (repealed 1974). Statutory dower was
originally “free from all liability for the debts of the decedent
and all costs, charges and expenses of administration”. 1933
Fla. Laws ch. 16103, sec. 35. However, it was modified in 1939
7 Our analysis of Florida statutory dower refers to the 1964
version, which was contemporaneous with Rev. Rul. 64-101, 1964-1
C.B.(Part 1) 77, modified by Rev. Rul. 71-167, 1971-1 C.B. 163.
The Florida legislature modified statutory dower from time to
time throughout the entire period that it was in force.
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