Florida Statute 733.805 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title XLII
ESTATES AND TRUSTS

Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES

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F.S. 733.805

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.

(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.

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Amendments to 733.805

Annotations, Discussions, Cases:

Cases Citing Statute 733.805

Total Results: 17

In Re Estate of Rice

406 So. 2d 469

District Court of Appeal of Florida | Filed: Sep 29, 1981 | Docket: 1510040

Cited 12 times | Published

estate to bear the impact of the foregoing. See § 733.805, Fla. Stat. (1977). We commence our labor by reviewing

In Re Estate of Potter

469 So. 2d 957, 10 Fla. L. Weekly 1382, 1985 Fla. App. LEXIS 14338

District Court of Appeal of Florida | Filed: Jun 5, 1985 | Docket: 1272602

Cited 7 times | Published

exposition is supported by the provisions of section 733.805, Florida Statutes (1983): (1) If a testator

McKean v. Warburton

919 So. 2d 341, 2005 WL 2155180

Supreme Court of Florida | Filed: Jan 5, 2006 | Docket: 1678549

Cited 6 times | Published

BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? Warburton v. McKean, 877

In Re Estate of Lenahan

511 So. 2d 365, 12 Fla. L. Weekly 1668

District Court of Appeal of Florida | Filed: Jul 10, 1987 | Docket: 1338301

Cited 6 times | Published

taxes, are inapplicable to the instant case. Section 733.805(1) provides that if the testator makes provision

Cutler v. Cutler

994 So. 2d 341, 2008 WL 4057751

District Court of Appeal of Florida | Filed: Sep 3, 2008 | Docket: 1217430

Cited 5 times | Published

provisions of Florida's abatement *349 statute, section 733.805, Florida Statutes (2003), a provision that

Yoakley v. Raese

448 So. 2d 632

District Court of Appeal of Florida | Filed: Apr 25, 1984 | Docket: 1523039

Cited 4 times | Published

administration of the estate.[2] *634 The statute, Section 733.805(1), Florida Statutes (1981),[3] provided that

Estate of Ganier

402 So. 2d 418

District Court of Appeal of Florida | Filed: May 27, 1981 | Docket: 1691557

Cited 4 times | Published

pretermitted spouse shall be obtained in accordance with § 733.805. Section 732.301, Florida Statutes (1979). The

McEnderfer v. Keefe

921 So. 2d 597, 2006 WL 129320

Supreme Court of Florida | Filed: Jan 19, 2006 | Docket: 1315058

Cited 3 times | Published

BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? We have jurisdiction. See

Warburton v. McKean

877 So. 2d 50, 2004 WL 1257519

District Court of Appeal of Florida | Filed: Jun 9, 2004 | Docket: 1285013

Cited 3 times | Published

bequests are satisfied before residual bequests. § 733.805, Fla. Stat. (2002); In re Estate of Potter, 469

Azcunce v. Estate of Azcunce

586 So. 2d 1216, 1991 WL 181445

District Court of Appeal of Florida | Filed: Sep 17, 1991 | Docket: 1742582

Cited 3 times | Published

pretermitted child shall be obtained in accordance with § 733.805." Section 732.302, Florida Statutes (1985) (emphasis

Pfeifer v. Varner

452 So. 2d 622

District Court of Appeal of Florida | Filed: Sep 19, 1984 | Docket: 378193

Cited 1 times | Published

contentions on this point are without merit. Section 733.805(1)[2] specifically excepts from its operation

Geezil v. Savage

127 So. 3d 867, 2013 WL 6246204, 2013 Fla. App. LEXIS 19298

District Court of Appeal of Florida | Filed: Dec 4, 2013 | Docket: 60236902

Published

consider the order in which assets abate under section 733.805, Florida Statutes (2007), as well as the order

Basile v. Aldrich

70 So. 3d 682, 2011 Fla. App. LEXIS 13243, 2011 WL 3696309

District Court of Appeal of Florida | Filed: Aug 23, 2011 | Docket: 2352242

Published

142 Fla. 88, 194 So. 343, 344 (1940). See also § 733.805, Fla. Stat. (2009) (setting forth the order in

LAURITSEN v. Wallace

67 So. 3d 285, 2011 Fla. App. LEXIS 4666, 2011 WL 1195873

District Court of Appeal of Florida | Filed: Apr 1, 2011 | Docket: 2361301

Published

charges for debts, expenses, and taxes[.]" Section 733.805(1) provides that "[f]unds or property designated

In re Estate of Lane

562 So. 2d 352, 1990 Fla. App. LEXIS 2806, 1990 WL 49858

District Court of Appeal of Florida | Filed: Apr 25, 1990 | Docket: 64650931

Published

unwarranted under section 733.106(4). Rather, section 733.805, Florida Statutes (1987), provides the guide

Hayes v. Estate of Hayes

479 So. 2d 304, 10 Fla. L. Weekly 2749, 1985 Fla. App. LEXIS 17258

District Court of Appeal of Florida | Filed: Dec 11, 1985 | Docket: 64615912

Published

distribution. Her basis for objection was section 733.805(2), Florida Statutes (1983), which provides

Dumas v. Sanford

413 So. 2d 58, 1982 Fla. App. LEXIS 19507

District Court of Appeal of Florida | Filed: Mar 17, 1982 | Docket: 64589566

Published

spouse shall be obtained in accordance with section 733.805. Because the decedent in the instant case died