Rosalyn Deutsch - Page 30

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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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