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The Florida Bar
www.floridabar.org
OPINION 76-16
April 4, 1977
A surviving spouse who claims an elective share or statutory entitlements does not, without more, have a conflict of interest with the personal representative of an estate or other beneficiaries under a will. The attorney for the personal representative has the right and in some circumstances a duty, to inform the surviving spouse of the existence of those statutory rights.

Statutes: F.S. §§732.201, 732.402, 732.403, 733.504(9)

Chairman Sullivan stated the opinion of the committee:

A member of The Florida Bar submits a number of questions about the rights and duties of the lawyer for the personal representative of an estate administered under the Florida Probate Code. The questions and the Committee's answers to them are as follows:

1. Does the lawyer for the personal representative have the right to inform the surviving spouse of his or her entitlement to family allowance (Sec. 732.403), exempt property (Sec. 732.402), or right to claim an elective share (Sec. 732.201)?

Yes. The purpose of the Florida Probate Code is to provide a procedure to pay a decedent's debts and taxes and transfer and distribute the remaining assets as efficiently and inexpensively as possible to those entitled to them under the will or by intestacy. It is normal in most instances that the persons entitled to those assets will look to the personal representative or the lawyer for the estate to find out what they may expect to receive from the estate. A beneficiary or heir always has the right, of course, to retain independent counsel.

We believe that the lawyer for the personal representative has the right to provide those persons with that information and to provide the surviving spouse with information about his or her rights under the Probate Code. This is to be distinguished from counseling or giving legal advice.

The surviving spouse frequently is the personal representative. In claiming an elective share, a family allowance or exempt property we believe the surviving spouse is exercising a right provided by statute and is not acting in conflict with his or her duties as personal representative of the estate. Section 733.504(9), dealing with causes of removal of a personal representative because of a conflict of interest, specifically exempts as reasons for removal the surviving spouse's claiming an elective share or statutory entitlements. We believe that in most instances the lawyer for the personal representative prepares the papers by which the surviving spouse elects against the will or claims statutory entitlements. We see no ethical problem with this, provided there is no legal objection to claiming an elective share or entitlements.

If the surviving spouse claims one or more of the rights provided by statute, the result may be less for other beneficiaries. But the fact that claiming an elective share or statutory entitlements may alter the manner in which the estate is distributed does not, in the Committee's opinion, create a conflict of interest that requires the personal representative or his lawyer to refuse to provide any information about the existence of those rights and, in effect, to treat the surviving spouse as an adverse party.

Such a result could force the surviving spouse to seek independent legal advice. We do not believe that the Probate Code intended to create a proliferation of lawyers; its purpose was just the opposite.

The Committee recognizes that there may be situations where it is apparent from the outset that there will be a dispute between a personal representative and a surviving spouse-a will contest, for example. In such situations, the lawyer for the personal representative should advise the surviving spouse that an actual or potential conflict of interest exists and suggest that he or she obtain independent legal advice.

Even where there is an actual or potential conflict of interest between personal representative and surviving spouse, we do not think the lawyer for the personal representative should refuse to furnish information about the surviving spouse's legal rights under the Florida Probate Code.

2. Is the lawyer obligated to inform the surviving spouse of such rights?

The lawyer is not necessarily required to inform the surviving spouse of such rights, but the Committee believes that it would be advisable to do so in most instances.

When the personal representative is someone other than the surviving spouse, the surviving spouse may be looking to the lawyer for the personal representative for information even though there is no attorney-client relationship between them. If the lawyer knows this, we believe he may have a duty to inform the surviving spouse of these statutory rights. If the surviving spouse has retained a lawyer, there is probably no need to. When the surviving spouse is the personal representative, we believe the lawyer should advise the surviving spouse of these rights.

3. Assuming that the personal representative is someone other than the surviving spouse, are the rights or obligations of the lawyer in 1. and 2., above, different if the personal representative objects to the lawyer's informing the surviving spouse of her entitlement?

No. The right to claim an elective share, or family allowance or exempt property are, as stated above, rights provided by statute. The personal representative has the duty to administer the estate according to law, including Sections 732.201, 732.402 and 732.403. He has no duty to try to prevent the exercise of those rights.

4. Assuming that the personal representative is someone other than the surviving spouse, would the answer to 3., above, be different if the lawyer had represented the decedent and spouse for a number of years?

No. The fact that the lawyer previously represented the decedent and spouse does not automatically create a duty to inform the surviving spouse of his or her statutory rights. But, as stated in part of our answer to 2., above, the lawyer for the personal representative may have a duty, as distinguished from a right, to inform a surviving spouse of certain statutory rights if the lawyer has represented the decedent and spouse previously and knows the surviving spouse is looking to him for information.

5. Assuming that the personal representative is someone other than the surviving spouse, would the answer to 3., above, be different if the personal representative's opposition to the spouse claiming an elective share or statutory entitlements is based upon the personal representative's desire to increase his own distributive share?

No. A personal representative is a fiduciary, and his private desires vis-a-vis the estate are immaterial.



[Revised: 08-24-2011]