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Florida Statutes

Fla. Stat. § 733.805 (2025)

Order in which assets abate.

✓ 2025 Florida Statutes — current through the 2025 Regular Session
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733.805 Order in which assets abate.—
(1) Funds or property designated by the will shall be used to pay debts, family allowance, exempt property, elective share charges, expenses of administration, and devises, to the extent the funds or property is sufficient. If no provision is made or the designated fund or property is insufficient, the funds and property of the estate shall be used for these purposes, and to raise the shares of a pretermitted spouse and children, except as otherwise provided in subsections (3) and (4), in the following order:
(a) Property passing by intestacy.
(b) Property devised to the residuary devisee or devisees.
(c) Property not specifically or demonstratively devised.
(d) Property specifically or demonstratively devised.
(2) Demonstrative devises shall be classed as general devises upon the failure or insufficiency of funds or property out of which payment should be made, to the extent of the insufficiency. Devises to the decedent’s surviving spouse, given in satisfaction of, or instead of, the surviving spouse’s statutory rights in the estate, shall not abate until other devises of the same class are exhausted. Devises given for a valuable consideration shall abate with other devises of the same class only to the extent of the excess over the amount of value of the consideration until all others of the same class are exhausted. Except as herein provided, devises shall abate equally and ratably and without preference or priority as between real and personal property. When property that has been specifically devised or charged with a devise is sold or used by the personal representative, other devisees shall contribute according to their respective interests to the devisee whose devise has been sold or used. The amounts of the respective contributions shall be determined by the court and shall be paid or withheld before distribution is made.
(3) Section 733.817 shall be applied before this section is applied.
(4) In determining the contribution required under s. 733.607(2), subsections (1)-(3) of this section and s. 736.05053(2) shall be applied as if the beneficiaries of the estate and the beneficiaries of a trust described in s. 733.707(3), other than the estate or trust itself, were taking under a common instrument.
History.—s. 1, ch. 74-106; s. 88, ch. 75-220; s. 1, ch. 77-174; s. 1020, ch. 97-102; s. 156, ch. 2001-226; s. 38, ch. 2006-217.
Note.—Created from former s. 734.05.
Notes of Decisions
Cited in 21 cases, 1981–2013 · leading case: McKean v. Warburton, 919 So. 2d 341 (Fla. 2006).
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McKean v. Warburton, 919 So. 2d 341 (Fla. 2006). · cites it 5× “Relying on section 733.805, Florida Statutes (2004), [4] the Fourth District concluded that residuary gifts abate or fail before general or specific devises.”
In Re Est. of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981). · cites it 6× “See § 733.805, Fla. Stat. (1977). We commence our labor by reviewing the canons and rules of construction to determine the intent of a testator.”
Yoakley v. Raese, 448 So. 2d 632 (Fla. 4th DCA 1984). · cites it 7× “817, read in conjunction with Section 733.805. We reverse and remand Case Nos.”
In re Est. of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990). · cites it 6× “Rather, section 733.805, Florida Statutes (1987), provides the guide for appropriation of estate proceeds to pay such expenses.”
Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008). · cites it 2× “As I read her will—which contains two unambiguous, specific devises to her heirs, a residuary clause that split any residuary between these same two heirs, [6] and an administrative will provision seeking, ineffectually, at least as to the devise to Cynthia, to alter the general…”
Basile v. Aldrich, 70 So. 3d 682 (Fla. 1st DCA 2011). · cites it 4× “While the will does not dispose of all the property Ann Dunn Aldrich owned at her death, this circumstance is hardly unique to her or her estate and does not contravene any rule of law or public policy.”
Est. of Leach v. Comm'r, 82 T.C. 952 (Tax Ct. 1984). · cites it 2× “The statutory and case law are clear that instructions by a testator in a will (and generally by a settlor in a trust) as to the apportionment of taxes will control.”
In Re Est. of Potter, 469 So. 2d 957 (Fla. 4th DCA 1985). · cites it 2× “The above exposition is supported by the provisions of section 733.805, Florida Statutes (1983): (1) If a testator makes provision by his will, or designates the funds or property to be used, for the payment of debts, estate and inheritance taxes, family allowance, exempt…”
Warburton v. McKean, 877 So. 2d 50 (Fla. 4th DCA 2004). · cites it 2× “§ 733.805, Fla. Stat. (2002); In re Estate of Potter, 469 So.”
In Re Est. of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987). “805(1) provides that if the testator makes provision by his will or designates the funds or property to be used for debts, estate taxes and expenses of administration, they shall be paid out of the funds or property as provided by the will.”
Est. of Ganier, 402 So. 2d 418 (Fla. 5th DCA 1981). “The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with § 733.805. Section 732.301, Florida Statutes (1979).”
Azcunce v. Est. of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991). “The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with § 733.805." Section 732.302, Florida Statutes (1985) (emphasis added).”
Show all 21 citing cases →
— 733.805(1) — 6 cases
McKean v. Warburton, 919 So. 2d 341 (Fla. 2006). “Relying on section 733.805, Florida Statutes (2004), [4] the Fourth District concluded that residuary gifts abate or fail before general or specific devises.”
In Re Est. of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981). “See § 733.805, Fla. Stat. (1977). We commence our labor by reviewing the canons and rules of construction to determine the intent of a testator.”
Yoakley v. Raese, 448 So. 2d 632 (Fla. 4th DCA 1984). “817, read in conjunction with Section 733.805. We reverse and remand Case Nos.”
In re Est. of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990). “Rather, section 733.805, Florida Statutes (1987), provides the guide for appropriation of estate proceeds to pay such expenses.”
In Re Est. of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987). “805(1) provides that if the testator makes provision by his will or designates the funds or property to be used for debts, estate taxes and expenses of administration, they shall be paid out of the funds or property as provided by the will.”
— 733.805(1)(c) — 1 case
In Re Est. of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981). “See § 733.805, Fla. Stat. (1977). We commence our labor by reviewing the canons and rules of construction to determine the intent of a testator.”
— 733.805(1)(d) — 2 cases
In Re Est. of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981). “See § 733.805, Fla. Stat. (1977). We commence our labor by reviewing the canons and rules of construction to determine the intent of a testator.”
Sheets v. Palmer, 917 So. 2d 246 (Fla. 1st DCA 2005).
— 733.805(2) — 1 case
Hayes v. Est. of Hayes, 479 So. 2d 304 (Fla. 2d DCA 1985).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.

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