Legal Fees and the Elective Share

Recently, Florida’s Fourth District Court of Appeals held that legal fees incurred by the personal representatives of an estate to defend claims against the estate are not chargeable against the elective share.

In Blackburn v. Boulis, the personal representatives incurred attorneys’ fees as a result of “years of contentious litigation in probate court.” The probate court allowed the personal representatives to reduce the elective share awarded to the surviving spouse by a proportionate amount of the fees incurred by the personal representatives. While the Florida Probate Code permits certain specific costs and claims to reduce the elective share, the appeals court noted that attorney’s fees is not one of them. Accordingly, Fourth District Court of Appeals held that the legal fees were not chargeable against the elective share.

On a related issue, an ad-hoc committee of The Real Property, Probate, and Trust Law Section of the Florida Bar is currently considering proposed legislation that would give the probate court discretion to award a surviving spouse attorney’s fees in elective share proceedings. Currently, a surviving spouse is not entitled to recover such fees.

About the Author:
Brad Gould practices in the area of federal income, estate, and gift tax law and business succession planning. He represents businesses and business owners in all types of business and tax matters, including choice of entity, mergers and acquisitions, reorganizations, and other general business matters. Mr. Gould represents individuals, businesses and fiduciaries before the Internal Revenue Service and also counsels clients on estate and wealth preservation planning matters. Additionally, he represents trustees, personal representatives and family members in controversies regarding wills, trusts and estates. Mr. Gould also is a Certified Public Accountant. He may be reached at (772) 464-7700 or bgould@www.deanmead.com.