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Florida Statute 733.817 - Full Text and Legal Analysis
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The 2025 Florida Statutes

Title XLII
ESTATES AND TRUSTS
Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES
View Entire Chapter
733.817 Apportionment of estate taxes.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Fiduciary” means a person, other than the personal representative in possession of property included in the measure of the tax, who is liable to the applicable taxing authority for payment of the entire tax to the extent of the value of the property in possession.
(b) “Generation-skipping transfer tax” means the generation-skipping transfer tax imposed by chapter 13 of the Internal Revenue Code on direct skips of interests includable in the federal gross estate or a corresponding tax imposed by any state or country or political subdivision of the foregoing. The term does not include the generation-skipping transfer tax on taxable distributions, taxable terminations, or any other generation-skipping transfer. The terms “direct skip,” “taxable distribution,” and “taxable termination” have the same meanings as provided in s. 2612 of the Internal Revenue Code.
(c) “Governing instrument” means a will, trust instrument, or any other document that controls the transfer of property on the occurrence of the event with respect to which the tax is being levied.
(d) “Gross estate” means the gross estate, as determined by the Internal Revenue Code with respect to the federal estate tax and the Florida estate tax, and as that concept is otherwise determined by the estate, inheritance, or death tax laws of the particular state, country, or political subdivision whose tax is being apportioned.
(e) “Included in the measure of the tax” means for each separate tax that an interest may incur, only interests included in the measure of that particular tax are considered. As used in this section, the term does not include:
1. Any interest, whether passing under the will or not, to the extent the interest is initially deductible from the gross estate, without regard to any subsequent reduction of the deduction by reason of the charge of any part of the applicable tax to the interest. If an election is required for deductibility, an interest is not initially deductible unless the election for deductibility is allowed.
2. Interests or amounts that are not included in the gross estate but are included in the amount upon which the applicable tax is computed, such as adjusted taxable gifts pursuant to s. 2001 of the Internal Revenue Code.
3. Gift taxes included in the gross estate pursuant to s. 2035 of the Internal Revenue Code and the portion of any inter vivos transfer included in the gross estate pursuant to s. 529 of the Internal Revenue Code, notwithstanding inclusion in the gross estate.
(f) “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
(g) “Net tax” means the net tax payable to the particular state, country, or political subdivision whose tax is being apportioned, after taking into account all credits against the applicable tax except as provided in this section. With respect to the federal estate tax, net tax is determined after taking into account all credits against the tax except for the credit for foreign death taxes and except for the credit or deduction for state taxes imposed by states other than this state.
(h) “Nonresiduary devise” means any devise that is not a residuary devise.
(i) “Nonresiduary interest,” in connection with a trust, means any interest in a trust which is not a residuary interest.
(j) “Recipient” means, with respect to property or an interest in property included in the gross estate, an heir at law in an intestate estate; devisee in a testate estate; beneficiary of a trust; beneficiary of a life insurance policy, annuity, or other contractual right; surviving tenant; taker as a result of the exercise or in default of the exercise of a general power of appointment; person who receives or is to receive the property or an interest in the property; or person in possession of the property, other than a creditor.
(k) “Residuary devise” has the meaning in s. 731.201.
(l) “Residuary interest,” in connection with a trust, means an interest in the assets of a trust which remain after provision for any distribution that is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount.
(m) “Revocable trust” means a trust as described in s. 733.707(3).
(n) “Section 2044 interest” means an interest included in the measure of the tax by reason of s. 2044 of the Internal Revenue Code.
(o) “State” means any state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(p) “Tax” means any estate tax, inheritance tax, generation-skipping transfer tax, or other tax levied or assessed under the laws of this or any other state, the United States, any other country, or any political subdivision of the foregoing, as finally determined, which is imposed as a result of the death of the decedent. The term also includes any interest or penalties imposed in addition to the tax. Unless the context indicates otherwise, the term means each separate tax. The term does not include any additional estate tax imposed by s. 2032A(c) or s. 2057(f) of the Internal Revenue Code or a corresponding tax imposed by any state or country or political subdivision of the foregoing. The additional estate tax imposed shall be apportioned as provided in s. 2032A or s. 2057 of the Internal Revenue Code.
(q) “Temporary interest” means an interest in income or an estate for a specific period of time, for life, or for some other period controlled by reference to extrinsic events, whether or not in trust.
(r) “Tentative Florida tax” with respect to any property means the net Florida estate tax that would have been attributable to that property if no tax were payable to any other state in respect of that property.
(s) “Value” means the pecuniary worth of the interest involved as finally determined for purposes of the applicable tax after deducting any debt, expense, or other deduction chargeable to it for which a deduction was allowed in determining the amount of the applicable tax. A lien or other encumbrance is not regarded as chargeable to a particular interest to the extent that it will be paid from other interests. The value of an interest is not reduced by reason of the charge against it of any part of the tax, except as provided in paragraph (3)(a).
(2) ALLOCATION OF TAX.—Except as effectively directed in the governing instrument pursuant to subsection (4), the net tax attributable to the interests included in the measure of each tax shall be determined by the proportion that the value of each interest included in the measure of the tax bears to the total value of all interests included in the measure of the tax. Notwithstanding the foregoing provision of this subsection and except as effectively directed in the governing instrument:
(a) The net tax attributable to section 2044 interests shall be determined in the manner provided for the federal estate tax in s. 2207A of the Internal Revenue Code, and the amount so determined shall be deducted from the tax to determine the net tax attributable to all other interests included in the measure of the tax.
(b) The foreign tax credit allowed with respect to the federal estate tax shall be allocated among the recipients of interests finally charged with the payment of the foreign tax in reduction of any federal estate tax chargeable to the recipients of the foreign interests, whether or not any federal estate tax is attributable to the foreign interests. Any excess of the foreign tax credit shall be applied to reduce proportionately the net amount of federal estate tax chargeable to the remaining recipients of the interests included in the measure of the federal estate tax.
(c) The reduction in the net tax attributable to the deduction for state death taxes allowed by s. 2058 of the Internal Revenue Code shall be allocated to the recipients of the interests that produced the deduction. For this purpose, the reduction in the net tax shall be calculated in the manner provided for interests other than those described in paragraph (a).
(d) The reduction in the Florida tax, if one is imposed, on the estate of a Florida resident for tax paid to another state shall be allocated as follows:
1. If the net tax paid to another state is greater than or equal to the tentative Florida tax attributable to the property subject to tax in the other state, none of the Florida tax shall be attributable to that property.
2. If the net tax paid to another state is less than the tentative Florida tax attributable to the property subject to tax in the other state, the net Florida tax attributable to the property subject to tax in the other state shall be the excess of the amount of the tentative Florida tax attributable to the property over the net tax payable to the other state with respect to the property.
3. Any remaining net Florida tax shall be attributable to property included in the measure of the Florida tax exclusive of the property subject to tax in another state.
4. The net federal tax attributable to the property subject to tax in the other state shall be determined as if the property were located in that state.
(e) The net tax attributable to a temporary interest, if any, is regarded as attributable to the principal that supports the temporary interest.
(3) APPORTIONMENT OF TAX.—Except as otherwise effectively directed in the governing instrument pursuant to subsection (4), the net tax attributable to each interest shall be apportioned as follows:
(a) Generation-skipping transfer tax.—Any federal or state generation-skipping transfer tax shall be apportioned as provided in s. 2603 of the Internal Revenue Code after the application of the remaining provisions of this subsection to taxes other than the generation-skipping transfer tax.
(b) Section 2044 interests.—The net tax attributable to section 2044 interests shall be apportioned among the recipients of the section 2044 interests in the proportion that the value of each section 2044 interest bears to the total of all section 2044 interests. The net tax apportioned by this paragraph to section 2044 interests that pass in the manner described in paragraph (c) or paragraph (d) shall be apportioned to the section 2044 interests in the manner described in those paragraphs before the apportionment of the net tax attributable to the other interests passing as provided in those paragraphs. The net tax attributable to the interests other than the section 2044 interests which pass in the manner described in paragraph (c) or paragraph (d) shall be apportioned only to such other interests pursuant to those paragraphs.
(c) Wills.—The net tax attributable to property passing under the decedent’s will shall be apportioned in the following order of priority:
1. The net tax attributable to nonresiduary devises shall be charged to and paid from the residuary estate, whether or not all interests in the residuary estate are included in the measure of the tax. If the residuary estate is insufficient to pay the net tax attributable to all nonresiduary devises, the balance of the net tax attributable to nonresiduary devises shall be apportioned among the recipients of the nonresiduary devises in the proportion that the value of each nonresiduary devise included in the measure of the tax bears to the total of all nonresiduary devises included in the measure of the tax.
2. The net tax attributable to residuary devises shall be apportioned among the recipients of the residuary devises included in the measure of the tax in the proportion that the value of each residuary devise included in the measure of the tax bears to the total of all residuary devises included in the measure of the tax. If the residuary estate is insufficient to pay the net tax attributable to all residuary devises, the balance of the net tax attributable to residuary devises shall be apportioned among the recipients of the nonresiduary devises in the proportion that the value of each nonresiduary devise included in the measure of the tax bears to the total of all nonresiduary devises included in the measure of the tax.
(d) Trusts.—The net tax attributable to property passing under the terms of any trust other than a trust created in the decedent’s will shall be apportioned in the following order of priority:
1. The net tax attributable to nonresiduary interests of the trust shall be charged to and paid from the residuary portion of the trust, whether or not all interests in the residuary portion are included in the measure of the tax. If the residuary portion is insufficient to pay the net tax attributable to all nonresiduary interests, the balance of the net tax attributable to nonresiduary interests shall be apportioned among the recipients of the nonresiduary interests in the proportion that the value of each nonresiduary interest included in the measure of the tax bears to the total of all nonresiduary interests included in the measure of the tax.
2. The net tax attributable to residuary interests of the trust shall be apportioned among the recipients of the residuary interests of the trust included in the measure of the tax in the proportion that the value of each residuary interest included in the measure of the tax bears to the total of all residuary interests of the trust included in the measure of the tax. If the residuary portion is insufficient to pay the net tax attributable to all residuary interests, the balance of the net tax attributable to residuary interests shall be apportioned among the recipients of the nonresiduary interests in the proportion that the value of each nonresiduary interest included in the measure of the tax bears to the total of all nonresiduary interests included in the measure of the tax.

Except as provided in paragraph (g), this paragraph applies separately for each trust.

(e) Protected homestead, exempt property, and family allowance.—
1. The net tax attributable to an interest in protected homestead, exempt property, and the family allowance determined under s. 732.403 shall be apportioned against the recipients of other interests in the estate or passing under any revocable trust in the following order of priority:
a. Class I.—Recipients of interests passing by intestacy that are included in the measure of the federal estate tax.
b. Class II.—Recipients of residuary devises, residuary interests, and pretermitted shares under ss. 732.301 and 732.302 that are included in the measure of the federal estate tax.
c. Class III.—Recipients of nonresiduary devises and nonresiduary interests that are included in the measure of the federal estate tax.
2. Any net tax apportioned to a class pursuant to this paragraph shall be apportioned among each recipient in the class in the proportion that the value of the interest of each bears to the total value of all interests included in that class. A tax may not be apportioned under this paragraph to the portion of any interest applied in satisfaction of the elective share whether or not included in the measure of the tax. For purposes of this paragraph, if the value of the interests described in s. 732.2075(1) exceeds the amount of the elective share, the elective share shall be treated as satisfied first from interests other than those described in classes I, II, and III, and to the extent that those interests are insufficient to satisfy the elective share, from the interests passing to or for the benefit of the surviving spouse described in classes I, II, and III, beginning with those described in class I, until the elective share is satisfied. This paragraph has priority over paragraphs (a) and (h).
3. The balance of the net tax attributable to any interest in protected homestead, exempt property, and the family allowance determined under s. 732.403 which is not apportioned under the preceding provisions of this paragraph shall be apportioned to the recipients of those interests included in the measure of the tax in the proportion that the value of each bears to the total value of those interests included in the measure of the tax.
(f) Construction.—For purposes of this subsection:
1. If the decedent’s estate is the beneficiary of a life insurance policy, annuity, or contractual right included in the decedent’s gross estate, or is the taker as a result of the exercise or default in exercise of a general power of appointment held by the decedent, that interest shall be regarded as passing under the terms of the decedent’s will for the purposes of paragraph (c) or by intestacy if not disposed of by will. Additionally, any interest included in the measure of the tax by reason of s. 2041 of the Internal Revenue Code passing to the decedent’s creditors or the creditors of the decedent’s estate shall be regarded as passing to the decedent’s estate for the purpose of this subparagraph.
2. If a trust is the beneficiary of a life insurance policy, annuity, or contractual right included in the decedent’s gross estate, or is the taker as a result of the exercise or default in exercise of a general power of appointment held by the decedent, that interest shall be regarded as passing under the trust for purposes of paragraph (d).
(g) Common instrument construction.—In the application of this subsection, paragraphs (b)-(f) shall be applied to apportion the net tax to the recipients under certain governing instruments as if all recipients under those instruments, other than the estate or revocable trust itself, were taking under a common instrument. This construction applies to the following:
1. The decedent’s will and revocable trust if the estate is a beneficiary of the revocable trust or if the revocable trust is a beneficiary of the estate.
2. A revocable trust of the decedent and another revocable trust of the decedent if either trust is the beneficiary of the other trust.
(h) Other interests.—The net tax that is not apportioned to interests under paragraphs (b)-(g), including, but not limited to, the net tax attributable to interests passing by intestacy, interests applied in satisfaction of the elective share pursuant to s. 732.2075(2), interests passing by reason of the exercise or nonexercise of a general power of appointment, jointly held interests passing by survivorship, life insurance, properties in which the decedent held a reversionary or revocable interest, annuities, and contractual rights, shall be apportioned among the recipients of the remaining interests included in the measure of the tax in the proportion that the value of each such interest bears to the total value of all remaining interests included in the measure of the tax.
(i) Assessment of liability by court.—If the court finds that:
1. It is inequitable to apportion interest or penalties, or both, in the manner provided in paragraphs (a)-(h), the court may assess liability for the payment thereof in the manner that the court finds equitable.
2. The payment of any tax was not effectively directed in the governing instrument pursuant to subsection (4) and that such tax is not apportioned by this subsection, the court may assess liability for the payment of such tax in the manner that the court finds equitable.
(4) DIRECTION AGAINST APPORTIONMENT.—
(a) Except as provided in this subsection, a governing instrument may not direct that taxes be paid from property other than that passing under the governing instrument.
(b) For a direction in a governing instrument to be effective to direct payment of taxes attributable to property passing under the governing instrument in a manner different from that provided in this section, the direction must be express.
(c) For a direction in a governing instrument to be effective to direct payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument, the governing instrument must expressly direct that the property passing under the governing instrument bear the burden of taxation for property not passing under the governing instrument. Except as provided in paragraph (d), a direction in the governing instrument to the effect that all taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise shall be effective to direct payment from property passing under the governing instrument of taxes attributable to property not passing under the governing instrument.
(d) In addition to satisfying the other provisions of this subsection:
1.a. For a direction in the decedent’s will or revocable trust to be effective in waiving the right of recovery provided in s. 2207A of the Internal Revenue Code for the tax attributable to section 2044 interests, and for any tax imposed by Florida based upon such section 2044 interests, the direction must expressly waive that right of recovery. An express direction that property passing under the will or revocable trust bear the tax imposed by s. 2044 of the Internal Revenue Code is deemed an express waiver of the right of recovery provided in s. 2207A of the Internal Revenue Code. A reference to “qualified terminable interest property,” “QTIP,” or property in which the decedent had a “qualifying income interest for life” is deemed to be a reference to property upon which tax is imposed by s. 2044 of the Internal Revenue Code which is subject to the right of recovery provided in s. 2207A of the Internal Revenue Code.
b. If property is included in the gross estate pursuant to ss. 2041 and 2044 of the Internal Revenue Code, the property is deemed included under s. 2044, and not s. 2041, for purposes of allocation and apportionment of the tax.
2. For a direction in the decedent’s will or revocable trust to be effective in waiving the right of recovery provided in s. 2207B of the Internal Revenue Code for tax imposed by reason of s. 2036 of the Internal Revenue Code, and any tax imposed by Florida based upon s. 2036 of the Internal Revenue Code, the direction must expressly waive that right of recovery. An express direction that property passing under the will or revocable trust bear the tax imposed by s. 2036 of the Internal Revenue Code is deemed an express waiver of the right of recovery provided in s. 2207B of the Internal Revenue Code. If property is included in the gross estate pursuant to ss. 2036 and 2038 of the Internal Revenue Code, the property is deemed included under s. 2038, not s. 2036, for purposes of allocation and apportionment of the tax, and there is no right of recovery under s. 2207B of the Internal Revenue Code.
3. A general statement in the decedent’s will or revocable trust waiving all rights of reimbursement or recovery under the Internal Revenue Code is not an express waiver of the rights of recovery provided in s. 2207A or s. 2207B of the Internal Revenue Code.
4. For a direction in a governing instrument to be effective to direct payment of generation-skipping transfer tax in a manner other than as provided in s. 2603 of the Internal Revenue Code, and any tax imposed by Florida based on s. 2601 of the Internal Revenue Code, the direction must specifically reference the tax imposed by s. 2601 of the Internal Revenue Code. A reference to the generation-skipping transfer tax or s. 2603 of the Internal Revenue Code is deemed to be a reference to property upon which tax is imposed by reason of s. 2601 of the Internal Revenue Code.
(e) If the decedent expressly directs by will, the net tax attributable to property over which the decedent held a general power of appointment may be determined in a manner other than as provided in subsection (2) if the net tax attributable to that property does not exceed the difference between the total net tax determined pursuant to subsection (2), determined without regard to this paragraph, and the total net tax that would have been payable if the value of the property subject to such power of appointment had not been included in the decedent’s gross estate. If tax is attributable to one or more section 2044 interests pursuant to subsection (2), the net tax attributable to the section 2044 interests shall be calculated before the application of this paragraph unless the decedent expressly directs otherwise by will.
(f) If the decedent’s will expressly provides that the tax is to be apportioned as provided in the decedent’s revocable trust by specific reference to the revocable trust, an express direction in the revocable trust is deemed to be a direction contained in the will as well as the revocable trust.
(g) An express direction in the decedent’s will to pay tax from the decedent’s revocable trust by specific reference to the revocable trust is effective unless a contrary express direction is contained in the revocable trust.
(h) If governing instruments contain effective directions that conflict as to payment of taxes, the most recently executed tax apportionment provision controls to the extent of the conflict. For the purpose of this subsection, if a will or other governing instrument is amended, the date of the codicil to the will or amendment to the governing instrument is regarded as the date of the will or other governing instrument only if the codicil or amendment contains an express tax apportionment provision or an express modification of the tax apportionment provision. A general statement ratifying or republishing all provisions not otherwise amended does not meet this condition. If the decedent’s will and another governing instrument were executed on the same date, the will is deemed executed after the other governing instrument. The earlier conflicting governing instrument controls as to any tax remaining unpaid after the application of the later conflicting governing instrument.
(i) A grant of permission or authority in a governing instrument to request payment of tax from property passing under another governing instrument is not a direction apportioning the tax to the property passing under the other governing instrument. A grant of permission or authority in a governing instrument to pay tax attributable to property not passing under the governing instrument is not a direction apportioning the tax to property passing under the governing instrument.
(j) This section applies to any tax remaining to be paid after the application of any effective express directions. An effective express direction for payment of tax on specific property or a type of property in a manner different from that provided in this section is not effective as an express direction for payment of tax on other property or other types of property included in the measure of the tax.
(5) TRANSFER OF PROPERTY.—A personal representative or fiduciary shall not be required to transfer to a recipient any property reasonably anticipated to be necessary for the payment of taxes. Further, the personal representative or fiduciary is not required to transfer any property to the recipient until the amount of the tax due from the recipient is paid by the recipient. If property is transferred before final apportionment of the tax, the recipient shall provide a bond or other security for his or her apportioned liability in the amount and form prescribed by the personal representative or fiduciary.
(6) ORDER OF APPORTIONMENT.—
(a) The personal representative may petition at any time for an order of apportionment. If administration of the decedent’s estate has not commenced at any time after 90 days from the decedent’s death, any fiduciary may petition for an order of apportionment in the court in which venue would be proper for administration of the decedent’s estate. Notice of the petition for order of apportionment must be served on all interested persons in the manner provided for service of formal notice. At any time after 6 months from the decedent’s death, any recipient may petition the court for an order of apportionment.
(b) The court shall determine all issues concerning apportionment. If the tax to be apportioned has not been finally determined, the court shall determine the probable tax due or to become due from all interested persons, apportion the probable tax, and retain jurisdiction over the parties and issues to modify the order of apportionment as appropriate until after the tax is finally determined.
(7) DEFICIENCY.—
(a) If the personal representative or fiduciary does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient, whether under this section, the Internal Revenue Code, or the governing instrument, if applicable, the personal representative or fiduciary shall recover the deficiency in tax so apportioned to the recipient:
1. From the fiduciary in possession of the property to which the tax is apportioned, if any; and
2. To the extent of any deficiency in collection from the fiduciary, or to the extent collection from the fiduciary is excused pursuant to subsection (8) and in all other cases, from the recipient of the property to which the tax is apportioned, unless relieved of this duty as provided in subsection (8).
(b) In any action to recover the tax apportioned, the order of apportionment is prima facie correct.
(c) In any action for the enforcement of an order of apportionment, the court shall award taxable costs as in chancery actions, including reasonable attorney fees, and may award penalties and interest on the unpaid tax in accordance with equitable principles.
(d) This subsection does not authorize the recovery of any tax from a company issuing life insurance included in the gross estate, or from a bank, trust company, savings and loan association, or similar institution with respect to any account in the name of the decedent and any other person which passed by operation of law at the decedent’s death.
(8) RELIEF FROM DUTY.—
(a) A personal representative or fiduciary who has the duty under this section of collecting the apportioned tax from recipients may be relieved of the duty to collect the tax by an order of the court finding that:
1. The estimated court costs and attorney fees in collecting the apportioned tax from a person against whom the tax has been apportioned will approximate or exceed the amount of the recovery;
2. The person against whom the tax has been apportioned is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand; or
3. It is impracticable to enforce contribution of the apportioned tax against a person against whom the tax has been apportioned in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.
(b) A personal representative or fiduciary is not liable for failure to attempt to enforce collection if the personal representative or fiduciary reasonably believes that collection would have been economically impracticable.
(9) UNCOLLECTED TAX.—Any apportioned tax that is not collected shall be reapportioned in accordance with this section as if the portion of the property to which the uncollected tax had been apportioned had been exempt.
(10) CONTRIBUTION.—This section does not limit the right of any person who has paid more than the amount of the tax apportionable to that person, calculated as if all apportioned amounts would be collected, to obtain contribution from those who have not paid the full amount of the tax apportionable to them, calculated as if all apportioned amounts would be collected, and that right is hereby conferred. In any action to enforce contribution, the court shall award taxable costs as in chancery actions, including reasonable attorney fees.
(11) FOREIGN TAX.—This section does not require the personal representative or fiduciary to pay any tax levied or assessed by a foreign country unless specific directions to that effect are contained in the will or other instrument under which the personal representative or fiduciary is acting.
History.—s. 1, ch. 74-106; s. 95, ch. 75-220; s. 41, ch. 77-87; s. 273, ch. 79-400; s. 20, ch. 92-200; s. 1026, ch. 97-102; s. 9, ch. 97-240; s. 13, ch. 2000-159; s. 167, ch. 2001-226; s. 39, ch. 2006-217; s. 122, ch. 2010-5; s. 6, ch. 2015-27.
Note.—Created from former s. 734.041.

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Annotations, Discussions, Cases:

Cases Citing Statute 733.817

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In Re Est. of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981).

Cited 12 times | Published | Florida 3rd District Court of Appeal

...e to be paid as directed in Article FIRST. It is only where the residuary estate would be insufficient that Section 733.805(1)(d), Florida statutes (1977) will authorize the co-personal representatives to utilize the bank stock to pay the foregoing. Section 733.817, Florida Statutes (1977) was not activated because apportionment was not necessary since it was not a specific bequest under Section 733.805(1)(c), supra....
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Via v. Putnam, 656 So. 2d 460 (Fla. 1995).

Cited 12 times | Published | Supreme Court of Florida | 1995 WL 337970

...A surviving spouse is entitled to homestead, exempt property and family allowance whether or not he elects an elective share. Nothing in this section shall require the spouse to contribute to estate or inheritance taxes if contribution would not be required by § 733.817....
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In Re Est. of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987).

Cited 6 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1668

...3rd DCA 1958). Also, contrary to appellant's assertions, a will may have more than one residuary clause. See Sternberg v. Florida National Bank of Jacksonville, 114 Fla. 580, 154 So. 844 (1934). III. Finally, the provisions of Sections 733.805 and 733.817, Florida Statutes (1981), relating to apportionment of taxes, are inapplicable to the instant case....
...Section 733.805(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. Section 733.817, which deals with apportionment of estate taxes, plainly defers to provisions of the will....
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Ferrone v. Soffes, 558 So. 2d 146 (Fla. 3d DCA 1990).

Cited 5 times | Published | Florida 3rd District Court of Appeal | 1990 WL 26658

...Newman, Miami, for appellant. Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Thomas G. Sherman, Coral Gables, for appellee. Before BASKIN, FERGUSON and COPE, JJ. COPE, Judge. The question before us is the interpretation of the Florida apportionment statute, § 733.817(1)(e), Fla....
...tenants with right of survivorship. The jointly held properties comprised twenty-nine percent of the total gross estate. The personal representative, appellee Lawrence Soffes, sought apportionment of the estimated estate taxes pursuant to paragraph 733.817(1)(e), Florida Statutes (1987), which provides, in part: *147 The balance of the net amount of the tax, including, but not limited to, any tax imposed concerning gifts in contemplation of death, jointly held properties passing by survivorship...
...In that fashion it will be unmistakably clear that the testator considered the issue and made a deliberate decision about the burden of taxation. It is that degree of particularity which is contemplated by the phrase, "otherwise directed by the will." § 733.817(1)(e), Fla....
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Boulis v. Blackburn, 16 So. 3d 186 (Fla. 4th DCA 2009).

Cited 4 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 10739, 2009 WL 2382358

...ate taxes. Appellant, Efrosini "Frances" Boulis, the surviving spouse of the decedent, Konstantinos "Gus" Boulis, appeals those orders. We affirm the trial court's determination that appellant's elective share bear its proportional share pursuant to section 733.817(5)(f), Florida Statutes (2000). We also affirm the apportionment of taxes on the life insurance and the homestead property to the Class II recipients under section 733.817(5)(c), Florida Statutes (2000)....
...etermine the allocation of any federal estate tax to the elective share, [2] the homestead property, and the decedent's life insurance. Appellant argues that certain probate code sections relieve her elective share of any liability for estate taxes. Section 733.817, Florida Statutes (2000), governs the apportionment of estate taxes....
...be apportioned among the recipients of the remaining interests that are included in the measure of the tax in proportion that the value of each such interest bears to the total value of all the remaining interests included in the measure of the tax. § 733.817(5)(f), Fla. Stat. (2000). "The purpose of section 733.817 is to ensure that all estate and inheritance taxes are shared on a ratable basis by the beneficiaries receiving the property subject to those taxes." Tarbox v....
...that elective share is subject to tax. The net tax on an elective share is not apportioned under paragraphs (5)(a), (5)(b), or (5)(c), and it is not otherwise excluded. Therefore, the net tax attributable to the elective share is apportionable under section 733.817(5)(f)....
...y which would otherwise become a part of the Residuary Estate, all estate, inheritance, transfer and succession taxes, including interest and penalties thereon, which may be lawfully assessed by reason of my death." Appellant argues that pursuant to section 733.817(5)(h)1., Florida Statutes (2000), this provision of the will directs appellees to pay the taxes on the elective share out of the residuary estate. The trial court held that section 733.817(5)(h)4., Florida Statutes, is the applicable provision and, under that section, the decedent has not effectively directed the payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument. Section 733.817(5)(h), Florida Statutes, provides in pertinent part: (h)1....
...of taxes attributable to property not passing under the governing instrument. In In re Estate of McClaran, 811 So.2d 799 (Fla. 2d DCA 2002), the Second District addressed the issue of whether the direction in the decedent's will was effective under section 733.817(5)(h) to override the statutory method of apportionment of estate taxes....
...person holding or receiving that property. Id. at 800 (emphasis in original). The property at issue was certain life insurance policies not payable to the estate and, therefore, not passing under the governing instrument, i.e., the will. In applying section 733.817(5)(h)4., the district court held: In this case, Mr. McClaran's will does not expressly refer to section 733.817(5)(h)(4) because that section did not exist when the will was executed. Thus, the narrower question in this case is whether the will expressly indicates that the property passing under the governing instrument is to bear the burden of taxation for property not passing under the governing instrument. Section 733.817(5)(h)(4) suggests that one may opt out of the statutory rules of apportionment by employing language in the will similar to: "[A]ll taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise." . . . SunTrust maintains that the exception contained in this clause is sufficient to fulfill the requirements of section 733.817(5)(h)(4)....
...governing instrument. By requiring express language, the statute minimizes the number of cases in which the courts must search for the testator's intent as to the apportionment of taxes. Mr. McClaran's will does not contain the language required by section 733.817(5)(h)(4), and there is no longer a justification to look for the testator's intent when that language is missing....
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Yoakley v. Raese, 448 So. 2d 632 (Fla. 4th DCA 1984).

Cited 4 times | Published | Florida 4th District Court of Appeal

...nsufficiency in the residuary estate. We would note that some payment of estate, inheritance or death taxes from the trust corpus may be necessitated if the residuary estate is depleted with taxes still owing, and if so, it is fully authorized under Section 733.817, read in conjunction with Section 733.805....
...unds or from the property or proceeds as provided by the will so far as sufficient. If no provision is made or any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes, except as otherwise provided in s. 733.817 with respect to estate, inheritance, and other death taxes, and to raise the shares of a pretermitted spouse and children, in the following order: (a) Property not disposed of by the will....
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Keesee v. Est. of Neely, 498 So. 2d 1026 (Fla. 2d DCA 1986).

Cited 3 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 2636

...interests, in the proportion that the value of the property or interest of each included in the measure of the tax bears to the total value of all properties and interests included in the measure of the tax, except as otherwise directed by the will. § 733.817(1)(e), Fla....
...Gunter filed a petition with the trial court seeking a determination that the personal representative was required to refund the amount of the tax she had paid. The trial court denied Gunter's petition based upon the will's ambiguous language and concluded that section 733.817(1)(e), Florida Statutes (1985), controlled the payment of taxes associated with the insurance proceeds....
...Zurich Insurance Company v. Bartlett, 352 So.2d 921 (Fla. 2d DCA 1977). Nevertheless, the motion to dismiss Keesee's petition for the refund of the tax she paid was correctly decided. The ambiguity in the will supports the trial court's reliance upon section 733.817(1)(e), Florida Statutes (1985)....
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Tarbox v. Palmer, 564 So. 2d 1106 (Fla. 4th DCA 1990).

Cited 2 times | Published | Florida 4th District Court of Appeal | 1990 WL 70612

...Finally, it is argued that the elective share should not be burdened with payment of estate taxes because that share did not generate any tax. Accordingly, the elective share itself is not "included in the measure of the tax" as that term is defined in section 733.817(2)(c), Florida Statutes (1989), and thus estate taxes should not be apportioned to the recipient of that share....
...*1108 If we apply a literal interpretation to section 732.215, then the test is whether exercise of the election results in the imposition of taxes. If it does, and if the share itself is not taxable, then we have a conflict between the two statutes (732.215 and 733.817(2)(c))....
...For this reason, it could be argued that section 732.215 should not be applicable. The tax apportionment statute adverted to earlier also supports appellant's argument that the elective share should not be burdened with payment of estate taxes. The purpose of section 733.817 is to ensure that all estate and inheritance taxes are shared on a ratable basis by the beneficiaries receiving the property subject to those taxes. Section 733.817(2)(c) specifically excludes from the measure of tax, "any property or interest, whether passing under the will or not, to the extent the property or interest is exempt or is initially deductible from the gross estate......
...ction, the apportionment statute and the elective share statute appear inconsistent. While it would seem that section 732.215 requires the surviving spouse's elective share to pay the additional tax because of the reduction of the marital deduction, section 733.817 excludes such elective share property from the measure of tax. There are no appellate decisions that interpret sections 732.215 and 733.817(2)(c) together....
...This result would be in accordance with the intent of the Florida apportionment statute. If we interpreted section 732.215 narrowly and held that B must pay the increase in federal tax that results from the decrease in the marital deduction to A's estate, then such an interpretation would conflict with the intent of section 733.817 because B would then be paying federal estate tax generated by property B did not receive....
...duction and the entire increase in federal estate taxes due is generated by the non-marital property passing to the residuary beneficiaries. Thus, the estate taxes now due should be ratably shared among the residuary beneficiaries in accordance with section 733.817....
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Pfeifer v. Varner, 452 So. 2d 622 (Fla. 3d DCA 1984).

Cited 1 times | Published | Florida 3rd District Court of Appeal

...Varner, as the surviving joint tenant, is liable for the estate tax attributed to the decedent's interest in the jointly held property. This conclusion, which is to the contrary of the *623 one below, is compelled by the clear and unambiguous terms of Section 733.817(1)(e), Florida Statutes (1981), which provides: (1) Any estate, inheritance, or other death tax levied or assessed under the tax laws of this or any other state, political subdivision, or country or under any United States revenue act...
...74 Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev. 1, n. 264 (1974). The appellee's several contentions on this point are without merit. Section 733.805(1) [2] specifically excepts from its operation estate taxes "as otherwise provided in s. 733.817." Section 733.817(1)(a) [3] states only that the residuary estate shall bear the burden of the estate taxes attributable to all assets which pass under the will [4] and has no application to the non-probatable interest involved here. Finally, the cases relied upon, e.g., In re Estate of Barret, 137 So.2d 587 (Fla. 1st DCA 1962), were decided during a period when neither § 733.817(1)(e) nor a statutory equivalent was in effect and are therefore obviously not controlling....
...ains, that accrue during the period of administration. [e.s.] As we were concerning the first issue, we are unimpressed with the attempts, coming this time from the opposite direction, to avoid the legislative command. While Sections 732.214 [6] and 733.817(4), [7] Florida Statutes (1981) provide for suspending distribution under certain circumstances, neither concerns the present issue, with which § 738.05(2)(a) specifically deals, of how much the devisee must be paid when the distribution finally occurs....
...unds or from the property or proceeds as provided by the will so far as sufficient. If no provision is made or any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes, except as otherwise provided in s. 733.817 with respect to estate, inheritance, and other death taxes, and to raise the share of pretermitted spouse and children, in the following order: (a) Property not disposed of by the will. (b) Property devised to the residuary devisee or devisees. (c) Property not specifically or demonstratively devised. (d) Property specifically or demonstratively devised. [3] § 733.817(1)(a) (a) If a part of the estate passed under a will as a specific devise or general devise or in any other nonresiduary form, exclusive of property over which the decedent had a power of appointment as defined from time to time under the...
...The statute was amended substantially in 1957, the result being that death taxes were a charge against the residue unless the will provided otherwise. An amendment to F.S. 734.041 in 1963 converted the statute back to an equitable apportionment statute. The present statute, 733.817, also an equitable statute, was enacted in 1974....
...On petition of any interested party after notice, the court may suspend distribution of the elective share or any part of it until final settlement of the federal estate tax liability of the estate. Assets distributed in kind shall be distributed at fair market value on the date of distribution. [7] § 733.817(4) (4) No personal representative or other fiduciary shall be required to transfer any property until the amount of any tax due from the transferee is paid or, if the apportionment of tax has not been determined, until adequate security is furnished for the payment....
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In Re Est. of Collin, 368 So. 2d 1350 (Fla. 4th DCA 1979).

Cited 1 times | Published | Florida 4th District Court of Appeal | 44 A.F.T.R.2d (RIA) 79

...Court: IF THE INTENT OF A TESTATOR TO SHIFT THE EXCLUSIVE TAX BURDEN AWAY FROM THOSE LIABLE FOR THE TAX IS MANIFEST FROM THE DIRECTIVE LANGUAGE CONTAINED IN HIS LAST WILL AND TESTAMENT, DOES HIS FAILURE TO EXPLICITLY SO DIRECT, REQUIRE THAT CHAPTER 733.817(1)(b) BE APPLICABLE TO A RESIDUARY ESTATE, SO THAT CHARITABLE BENEFICIARIES DO NOT SHARE IN THE TAX BURDEN? The charities argue that the answer to the above question is in the affirmative [1] citing, principally, In Re Heit's Estate, 26 Misc.2d 774, 206 N.Y.S.2d 59 (Sur.Ct., N.Y....
...Some of these beneficiaries are charities and under the federal estate tax code bequests to charities are exempt from sharing in the tax because they are not included in the "taxable estate." 26 U.S.C. § 2055. More precisely, testamentary gifts to qualified charities are not included in the gross estate for tax purposes. Section 733.817(1)(b), Florida Statutes (1977) provides that unless the testator directs otherwise charity beneficiaries do not have to suffer the reduction in their share of the estate by the payment of estate taxes; that is, they get their percentage off the top before the tax payment is apportioned among the remaining non-charity residuary beneficiaries. This is so because testamentary gifts to charities are not "interests included in the measure of the tax" as mentioned in Section 733.817(1)(b), Florida Statutes (1977). The question comes down to whether Mr. Collin in his will adequately "otherwise directed" as required in Section 733.817(1)(b), Florida Statutes (1977) in order to take this estate from under operation of that statute and require that the charity beneficiaries share in the payment of the estate taxes by having their shares figured after the estate taxes are paid instead of before those taxes are paid....
...The boilerplate testamentary direction "I do hereby direct that all my just debts, estate taxes, and expenses of my last illness and funeral expenses be paid out of my estate" which appears in Article II of Mr. Collin's will is not sufficient, in my opinion, to satisfy the Section 733.817(1)(b), Florida Statutes (1977) requirement "except as otherwise directed by the will." Of course, there is no necessity for this clause in a will because what the testator is directing is exactly what the law requires; all just debts proved after proper claim and taxes are first paid, by law. Section 733.701, Florida Statutes (1977) et seq. But still, I venture to say almost every will has this provision. As is noted in the majority opinion the attorney who drafted the will testified no thought was given to Section 733.817(1)(b), Florida Statutes (1977) thus further showing an inadequate "direction otherwise" required under the statute....
...ils to comply with the statute. If the testator or his attorney when drafting the will had provided something like "all residuary beneficiaries shall receive their proportionate shares without the preference for the charity beneficiaries provided in Section 733.817(1)(b), Florida Statutes (1977)" then I would find a specific "direction otherwise" as is contemplated in that statute....
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In Re Est. of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002).

Cited 1 times | Published | Florida 2nd District Court of Appeal | 2002 WL 397223

...McClaran, the pretermitted spouse of Clarence Edward McClaran, Jr., appeals a probate order requiring all estate taxes, including taxes attributable to certain life insurance, to be paid out of the residuary estate. We conclude that the language in Mr. McClaran's will, which was prepared in 1989, is insufficient under section 733.817, Florida Statutes (1999), to override the standard statutory method for the apportionment of estate taxes....
...The trial court conducted an evidentiary hearing and concluded that SunTrust, as trustee, was entitled to reimbursement for the payment of estate taxes from the estate. We conclude that the trial court erred in its ruling, as a matter of law, because it failed to enforce the version of section 733.817 that became effective a few days before Mr. McClaran's death. Section 733.817 contains a rather complex statutory method for the apportionment of estate taxes....
...ese amendments did not become effective until October 1, 1998. See ch. 97-240, § 14, Laws of Fla. Mr. McClaran did not amend his estate plan to address either his *801 new marriage or the statutory amendments. As amended, subsections (4) and (5) of section 733.817 provide general rules to apportion estate taxes among the recipients of the assets within the taxable estate. These sections apply "except as otherwise effectively directed by the governing instrument." See § 733.817(4)....
...The parties agree that these statutory provisions would not require the taxes attributable to the life insurance to be paid from the estate. Apparently, the statutory rules would require the tax to be apportioned among the recipients of the insurance proceeds. See § 733.817(4)(a), (5)(f), Fla. Stat. (1999); 26 U.S.C. § 2206. [1] Thus, the primary question in this case is whether the governing instrument overrides the statutory scheme. For purposes of section 733.817 and the estate plan involved in this case, the parties agree that the will is "the governing instrument." [2] Section 733.817(5)(h)(4) provides: For a direction in a governing instrument to be effective to direct payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument, the gove...
...nt or otherwise shall be effective to direct the payment from property passing under the governing instrument of taxes attributable to property not passing under the governing instrument. In this case, Mr. McClaran's will does not expressly refer to section 733.817(5)(h)(4) because that section did not exist when the will was executed. Thus, the narrower question in this case is whether the will expressly indicates that the property passing under the governing instrument is to bear the burden of taxation for property not passing under the governing instrument. Section 733.817(5)(h)(4) suggests that one may opt out of the statutory rules of apportionment by employing language in the will similar to: "[A]ll taxes are to be paid from property passing under the governing instrument whether attributable to prop...
...ying income interest for life or over which I may have a power of appointment shall be paid by the person holding or receiving that property. SunTrust maintains that the exception contained in this clause is sufficient to fulfill the requirements of section 733.817(5)(h)(4)....
...governing instrument. By requiring express language, the statute minimizes the number of cases in which the courts must search for the testator's intent as to the apportionment of taxes. Mr. McClaran's will does not contain the language required by section 733.817(5)(h)(4), and there is no longer a justification to look for the testator's intent when that language is missing. [3] Although the parties have relied upon case law predating the total revision of section 733.817, we are somewhat concerned that the case law has been superseded by the extensive statutory changes....
...tter that the probate court has not yet performed in light of its ruling. Because the parties have not litigated these matters and the trial court has not ruled upon them, this opinion does not reach issues associated with the apportionment. [2] See 733.817(1)(b), Fla. Stat. (1999). Section 733.817(1)(b) defines "governing instrument" as "a will or trust agreement or any other document that controls the transfer of an asset on the occurrence of the event with respect to which the tax is being levied." Although Mr....
...nt, the parties agree that it is not the controlling document in this case because its language is permissive, while the language in the will is directive. [3] This is not a case involving the more complex rules associated with revocable trusts. See § 733.817(5)(h)(2), (3), Fla....
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Solomon v. Dunlap, 372 So. 2d 218 (Fla. 1st DCA 1979).

Cited 1 times | Published | Florida 1st District Court of Appeal

...etermined by this Court to be exempt property and less the debts and costs of administration of this estate. The share of the Petitioner, Rowena B. Solomon, will furthermore be charged with those taxes which her share will equitably bear pursuant to Section 733.817, Florida Statutes." *219 The sole issue presented on appeal is whether Rowena B....
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Smith v. Unkefer, 515 So. 2d 757 (Fla. Dist. Ct. App. 1987).

Published | District Court of Appeal of Florida | 12 Fla. L. Weekly 2397, 1987 Fla. App. LEXIS 10558

...We affirm the trial court’s order which provided that the portion of the federal estate taxes owed upon the estate of Russell D. Smith which is attributable to the property in question in this case is payable by the recipients of the property pursuant to section 733.817(l)(e), Florida Statutes (1985)....
...We do not agree with the argument of appellant, who is the recipient of the property, that that portion of those taxes should not be so payable because the property was exempt homestead property subject to the provisions of section 733.-817(l)(d). Section 733.817(l)(d) provides that “[pjersons taking an interest in the homesteads shall not be liable for apportionment of taxes on account of the homesteads.” But even if the property had homestead status during the life of Russell D....
...That, as appellant also argues, the property became his homestead immediately upon the death of Russell D. Smith because he had lived on the property with him and continued to live there upon and after his death is, in our view, not determinative. We conclude that the homestead status to which section 733.817(l)(d) refers is that of property while in the possession of the decedent....
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Farrior v. Est. of Farrior, 694 So. 2d 804 (Fla. 4th DCA 1997).

Published | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 4964, 1997 WL 231493

estate taxes under section 733.817(l)(d), Florida Statutes (1995). Section 733.817(l)(d) provides, in
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Engelbrecht v. Earl, 689 So. 2d 1169 (Fla. 3d DCA 1997).

Published | Florida 3rd District Court of Appeal | 1997 Fla. App. LEXIS 1865, 1997 WL 91289

...Because the decedent had retained an interest in the properties, they were part of his estate for purposes of federal estate taxation, and the personal representative paid the estate taxes on the property. The personal representative then moved the probate court to require appellant to reimburse the estate, pursuant to section 733.817(l)(e), Florida Statutes (1991), for the estate taxes which were paid by virtue of the fact that this property was in the estate....
...The court granted the motion and appellant seeks reversal of the order requiring her to reimburse the estate. In Pfeifer v. Varner, 452 So.2d 622 (Fla. 3d DCA 1984), rev. denied, 461 So.2d 116 (Fla.1985), a case involving similar facts, the court held that under these circumstances section 733.817(l)(e), Florida Statutes (1981), clearly made a surviving joint tenant liable for the estate tax attributable to the decedent’s interest in jointly held property....
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Iandoli v. Iandoli, 547 So. 2d 664 (Fla. Dist. Ct. App. 1989).

Published | District Court of Appeal of Florida | 14 Fla. L. Weekly 1498, 1989 Fla. App. LEXIS 3523, 1989 WL 65902

...4th DCA 1979), are not helpful on this aspect of our deliberations. The case law from other jurisdictions and the various articles and commentaries discussed in the briefs also do not direct us to a solution of this problem. Florida’s apportionment statute, section 733.817, Florida Statutes (198Í), despite appellant’s position to the contrary, is not persuasive in either direction on the proper formula to be applied in these cases....
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In re Est. of Palmer, 600 So. 2d 537 (Fla. 4th DCA 1992).

Published | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 6292, 1992 WL 131842

...The probate court determined that Helen should pay the estate taxes based upon its interpretation of the language contained in section 732.215, Florida Statutes. In a case of first impression this court reversed, holding that the estate taxes should be ratably shared among the residuary beneficiaries in accordance with section 733.817, Florida Statutes (1989). Tarbox, 564 So.2d at 1109 . This court’s decision was based upon several factors including the public policy favoring dower and the elective share, as well as interpretation of section 733.817, the purpose of which is to ensure that all estate and inheritance taxes are shared on a ratable basis by the beneficiaries receiving the property subject to those taxes....
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DiPietro v. Aiello, 775 So. 2d 1013 (Fla. 4th DCA 2001).

Published | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 482, 2001 WL 55873

Trust Co., 310 So.2d 386 (Fla. 2d DCA 1975); § 733.817, Fla.Stat. (1997). GUNTHER, STONE, and SHAHOOD
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Sheets v. Palmer, 917 So. 2d 246 (Fla. 1st DCA 2005).

Published | Florida 1st District Court of Appeal | 2005 WL 3403620

...igation to pay a proportionate share of the estate taxes and administrative expenses. Rather, since the $38,500 was labeled a "bequest," it was required to bear its proportionate share of estate taxes and administrative expenses pursuant to sections 733.817(5)(a)1 and 733.805(1)(d), Florida Statutes (2003). Appellee responds that the trial court correctly interpreted the settlement agreement or, in the alternative, that the trial court had discretion equitably to apportion estate taxes and administrative expenses pursuant to sections 733.106(4) and 733.817(5)(g), Florida Statutes (2003)....
...Under Florida law, a specific bequest must pay administrative expenses and estate taxes proportionately along with all other such *249 bequests if, as was true here, the residuary estate does not contain sufficient assets to pay estate taxes and administrative expenses. See §§ 733.805(1)(d) & 733.817(1)(a), Fla. Stat. (1995). There is nothing in the settlement agreement (or the decedent's will) which indicates that this specific bequest should be excluded from the operation of these statutory provisions. See § 733.817(2)(d), Fla....
...axes and administrative expenses. Appellee argues that, even if not required by the settlement agreement, the trial court nevertheless had discretion equitably to apportion estate taxes and administrative expenses pursuant to sections 733.106(4) and 733.817(5)(g), Florida Statutes (2003)....
...However, section 733.106(4) provides no support for appellee's argument that the trial court had discretion to exempt the bequest from assessment for its proportionate share of estate taxes and other administrative expenses. The only other statute cited by appellee in support of its argument is section 733.817(5)(g), Florida Statutes (2003)....
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Nationsbank, Na v. Brenner, 756 So. 2d 203 (Fla. 3d DCA 2000).

Published | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 4550, 2000 WL 390405

...Pinellas Central Bank & Trust Co., 310 So.2d 386 (Fla. 2d DCA 1975); In re Estate of Strohm, 241 So.2d 167 (Fla. 4th DCA 1970), do not contain the "clear and unequivocal" direction against the apportionment of taxes between the estate and the trust which is required by section 733.817(2)(d), Florida Statutes (1997), to avoid the effect of the statutory rule that apportionment applies in the absence of such a direction....
...Raese, 448 So.2d 632 (Fla. 4th DCA 1984), pet. for review denied, 456 So.2d 1181 (Fla.1984); *205 Guidry, 310 So.2d at 386; Strohm, 241 So.2d at 167. After remand, therefore, the court will require apportionment of the estate tax burden in accordance with section 733.817....

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