Blackburn v. Boulis, 184 So.2d 565 (Fla. 4th DCA 2016)
This appeal centers around two distinct issues with regard to a surviving spouse's elective share: (1) first, whether a court can direct the payment of interest on a portion of the elective share amount, and (2) whether attorney's fees can be charged against the elective share.
Interest on elective share:
The probate court ordered that the spouse was entitled to interest at the statutory interest rate on forty percent of the elective share amount, from the date of the order determining the value of the spouse's minimum elective share. The Court held that it would be inequitable for the spouse to be denied the opportunity to a reasonable return on her elective share, and that it would likewise be inequitable for the spouse to enjoy a windfall of interest on a portion of the value of the elective share, which due to taxes, she would not be entitled to retain (since the elective share must bear its own taxes). Therefore, it was appropriate to assess interest on only a portion of the elective share value.
The probate court also charged a portion of the attorney's fees incurred by the estate in litigating the elective share claims against the spouse's elective share. The Court, in reviewing the elective share statute, found that the plain meaning of the statute clearly and unambiguously only set forth four types of expenses or costs which the probate court can deduct from the elective share (claims, mortgages, liens or security interests). Since the statute does not include attorney's fees, the probate court erred by deducting the fees from the spouse's elective share.