Abatement of Devises in a Will to Satisfy Claims Against an Estate in Florida

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In a perfect world, a testator’s estate will have enough funds to not only cover all of the bequests provided for in the testator’s will, but also pay for the costs of administering the estate, debts, and other unexpected expenses like elective or pretermission shares. Much of the time, however, the value of devises (gifts) contained in a will exceed what the estate can actually provide for after such costs associated with the probate process have been paid. When this occurs, certain devises made by the will are put toward satisfying these debts instead of going to the devisees referenced by the will in a process called abatement.

Florida Statutes section 733.805 provides the order by which devises will abate absent a scheme already provided for in a will. The order provided by the statute relies primarily on the type of the devise. For example, take Lea, a resident of Miami-Dade County, who has recently passed away leaving the follow devises in her will: (1) $400 cash to her son, Abe; (2) $400 to be paid for by the sale of her 1987 Oldsmobile Cutlass to her daughter, Betsy; (3) her iPhone to her daughter, Chelsea; and (4) everything that is left over to her favorite charity. All four of these devises illustrate a different type of devise, which, under Florida Statutes section 733.805 will abate in a certain order when satisfying claims against Lea’s estate.

The first category of devises that will abate are those passing through intestate succession. For example, if someone dies intestate (without a will), all those who would receive an intestate share of the estate take a pro-rata deduction in what they would otherwise take to cover costs that deplete the estate. Also, any leftover property in one’s estate that is not provided for by the will at all passes through intestacy and abates before the actual devises made in the will. An example of this first category is not in Lea’s estate, as her will provides for payment of leftover property to her husband.

The devise to her husband does, however, illustrate an example of a residual devise, the next type of devise that will abate under the Florida Probate Code. A residual devise usually includes all property in the estate that is leftover after all other devises in the estate have been made. Thus, the charity’s share under Lea’s will is the first devise that will abate to satisfy claims against the estate.

The next type of devise to abate is a general devise, or that property which is not specifically identified in a will. For example, Lea’s devise of $400 cash to her son is a general devise, as it fails to identify any specific property from which the gift is to be made.

If there is still the need to raid the estate, the last type of property that will be used to satisfy claims are those called specific or demonstrative devises. A specific devise is a gift of property that is explicitly identified, such as the iPhone. A demonstrative devise is a general devise that identifies specific property from which the proceeds are to be derived. For example, Lea’s devise to Betsy identifies the Cutlass as the specific source from which the devise of $400 is to be generated.

If you or someone you know lives in the West Palm, Broward or Miami-Dade area and are either planning to create a will, revising a will or has had their devise under a will improperly abated, the probate litigation team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.