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beneficiaries under the decedent’s will that statutory dower
enjoyed prior to 1974. Via v. Putnam, 656 So. 2d 460, 466 (Fla.
1995) (elective share); In re Estate of Donner, supra at 751-752
(dower); see also Pawley v. Pawley, 46 So. 2d 464, 472-473 n.2
(Fla. 1950). In Via v. Putnam, supra, the Florida Supreme Court
recently concluded that the elective share and pretermitted
spouse statutes give priority to the surviving spouse of a
subsequent marriage over the contractual rights of the children
of the decedent’s prior marriage who are beneficiaries of their
parents’ mutual wills. The Court justified its holding as
protecting the “`institution of marriage [that] has been a
cornerstone of western civilization * * * and * * * the most
important type of contract ever formed’”. Via v. Putnam, supra
at 465 (quoting In re Estate of Yohn, 238 So. 2d 290, 296 (Fla.
1970) (Boyd, J., concurring)).9
9 The confirmation by Via v. Putnam, 656 So. 2d 460, 465
(Fla. 1995), of the continued favored status of the surviving
spouse's interest in the elective share undercuts respondent’s
reliance on the Florida intermediate appellate decision in
Williams v. Harrington, 460 So. 2d 533, 537 (Fla. Dist. Ct. App.
1984), for the proposition that payment of the Florida elective
share is a sec. 662(a) distribution. The appellate court had
held that the surviving spouse, having paid income tax upon
receipt of her elective share, was not entitled to contribution
from the estate’s residuary beneficiaries. That decision was
based upon the assumption that, since subchapter J was in effect
when the Florida legislature enacted the current Probate Code,
the Florida legislature must have intended that payments in
satisfaction of the elective share would be treated as sec.
662(a) distributions. But see Cooper v. Parkinson, 186 So. 2d
844 (Fla. Dist. Ct. App. 1966) (enforced contract between
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