- 30 - 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.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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