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Moreover, the Florida elective share, unlike statutory
dower, does not share in income of the estate, or mesne profits,
nor is it entitled to interest from the estate prior to the date
distribution is ordered by the Probate Court, Price v. Florida
Natl. Bank, 419 So. 2d at 390-391. This is because Fla. Stat.
Ann. sec. 732.207 (West 1995), fixes the amount as of the date of
decedent's death without any other express statutory provision
for income to accrue. A transfer of statutory dower to a
surviving spouse included both property and mesne profits and the
surviving spouse incurred an income tax liability under section
102(b) to the extent of the mesne profits.21 The fact that the
surviving spouse who elects the Florida elective share incurs no
similar income tax liability because she is not entitled to enjoy
21 In Rev. Rul. 71-167, 1971-1 C.B. 163, the Commissioner
modified Rev. Rul. 64-101, 1964-1 C.B. (Part 1) at 78 which had
included mesne profits in the widow’s income as a “gift, bequest,
devise, or inheritance * * * of income from property” under
section 102(b), to express the view that mesne profits are
instead included in the estate’s gross income and that payments
of mesne profits earned by dower assets are includable in the
gross income of the widow under sec. 662(a), and deductible by
the estate under sec. 661(a). Inasmuch as the Florida elective
share does not have any income component, we express no view on
the correctness of Rev. Rul. 71-167, 1971-1 C.B. 163, with
respect to the transfer to a surviving spouse of income earned by
a statutory forced share. We also express no view on whether the
calculus of factors leading to our holding that the Florida
elective share is excluded from second tier distributions would
change were the share to have an income component, other than to
observe that the lack of entitlement to income means that the
Florida elective share consists entirely of property for estate
accounting purposes.
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