This article was originally published in June 2002 by Kristen M. Lynch for The Florida Bar Journal. The original article can be found here: source

On October 1, 2001, Florida’s new elective share statute, new F.S. §732.2035(7), became effective. To most, this would not seem to be an event of utmost significance, but to those of us dealing in the world of IRA administration every day, this means change.

Historically, IRAs and qualified plans have not been subject to probate administration in Florida. As such, they have not fallen under the jurisdiction of the personal representative other than for purposes of filing appropriate tax returns unless the assets were left to the decedent’s estate. Since IRAs and qualified plans now fall under the second tier1 of the three-tier priority system imposed by the elective share statute, this presents new potential problems. For purposes of this discussion, envision a scenario in which the decedent had significant IRA monies and no other property except homestead owned jointly with the surviving spouse, which does not enter into the elective share calculation.

Challenges in Estate Planning with IRAs

Estate planning has become more difficult with changes in estate tax laws and the specter of the new elective share. IRAs have always presented special estate planning challenges because of ownership restrictions and because an IRA cannot be given away intact during lifetime by the IRA owner. The IRS released new proposed Treasury regulations on January 12, 2001, and new final IRA regulations on April 16, 20022 ( IRA rules), simplifying administration during lifetime and providing new postmortem planning opportunities. However, when one now combines the application of the elective share statute with the IRA rules, the results can be somewhat unsettling.

Goal of Planning with IRAs

In general, the name of the game with IRAs is tax deferral. Monies are not taxable until they are distributed to a beneficiary, at which time the distribution is taxed as ordinary income at the beneficiary’s tax rate. The length of income tax deferral available depends on who is considered a “designated” beneficiary under the new proposed IRA rules which means an individual or a trust that is both valid under state law and irrevocable by its own terms upon the owner’s death. Under these rules, the measuring life for postdeath distributions is based on the designated beneficiary (or beneficiaries if there are separate shares) left standing on September 30 of the year after the year of death. In a best-case scenario, a nonspouse beneficiary could look forward to taking distributions from the IRA over his or her own life expectancy. If the IRA is left to the decedent’s estate, no beneficiary has been named, or if there are multiple beneficiaries and one is not an individual, the IRA will be deemed to have no designated beneficiary. Subsequently, distributions will be made based on the remaining single nonrecalculated life expectancy of the decedent3 if the decedent died after the required beginning date (RBD). If the IRA owner died prior to the RBD, distribution will need to be made by December 31 of the year containing the fifth anniversary of the decedent’s date of death. This certainly hampers the benefits of tax-deferred growth that might have otherwise been available.

Spouses are the only beneficiaries who can inherit IRA or qualified plan assets and roll them into his or her name, or simply change the name on the account. Furthermore, when a spouse does roll over assets, all future distribution dates revolve around the surviving spouse’s date of birth, rather than that of the deceased owner. Considerable tax benefits could be gained by leaving IRA or qualified plan assets to a spouse. Not only would these assets be subject to the unlimited marital deduction for estate tax purposes, but also there could be substantial deferral of income taxes, particularly if the surviving spouse is younger than the decedent.

Administrative Issues in Real Practice

No laws limit the right of a beneficiary to demand immediate distribution of a decedent’s IRA. In the case of an IRA, if children are named and there is a valid beneficiary designation and valid death certificate, there is currently nothing that would prevent an IRA trustee or custodian from promptly distributing those assets to the nonspouse beneficiaries. All this could transpire well in advance of the surviving spouse even filing for the election.4 This presents many potential problems. First, what happens if the children take distribution of the IRA assets in one tax year and pay income taxes on them, and then the IRA is determined to be part of the property necessary for contribution to the elective share? At a minimum there would be amended tax returns required, or possibly an award net of taxes, although the IRS might not be happy with that result if the surviving spouse were in a significantly higher tax bracket than the children. Second, if the spouse is awarded part of the IRA after the IRA monies have been distributed to the children and physically out of an IRA account for more than 60 days, the opportunity for rollover would seem to be lost. Finally, let’s assume that the decedent’s IRA trustee or any other trustee or custodian established beneficiary IRAs for each child. Florida has a creditor protection statute5 specifically exempting participants’ and beneficiaries’ interests in qualified plans and all types of IRAs from the claims of creditors. The only exception is if there is a valid QDRO in place.6 Furthermore, the Internal Revenue Code recognizes two categories of people or entities: participants and beneficiaries. If the spouse is not the designated beneficiary of the IRA or plan, then how do we categorize the spouse? If these were probate assets, the spouse might be considered an heir at law. However, IRAs and qualified plans are nonprobate assets and most documents have very specific beneficiary designations providing for succession in the event that a beneficiary predeceases. If, indeed, the spouse is not considered to be a beneficiary, and only the decedent can be the participant, arguably the spouse could be considered a creditor. If they were not in the position of a creditor, then it would seem that the spouse could not require the distribution of IRA assets to him or her unless they actually have a QDRO issued. The New York elective share statute specifically indicates that under the elective share the spouse is not to be considered a creditor.7 The Florida statute is silent in this regard.

When the Supreme Court of Florida granted an emergency petition for amendments to the probate rules and elective share statutes, the following language was included in its decision: “5. Although the committee expressed concern that §732.2145, Florida Statutes, is unclear whether the order is to be considered a judgment for purposes of statutory interest because it contains reference to both the order and to a judgment for the amount of the contribution, the committee proposal includes requirements for the order of contribution. The committee felt that this discrepancy could be left to the courts and general law for clarification.”8 This would seem to indicate that the decision of whether an elective share allocation would be considered a court order or a judgment, unenforceable against an IRA by virtue of current statutory law, will be left for the courts to decide.

IRAs, the IRS, and the Surviving Spouse

Spouses have traditionally gotten special treatment in regard to retirement accounts. There are several new potential complications that could arise relating to the manner in which a portion of the IRA might be awarded to a spouse. First, let’s examine the potential tax deferral issues. As a reminder, the identity of the beneficiary and whether it is a valid “designated” beneficiary determines what options are available for the deferral of income tax after the death of the IRA owner.

For purposes of distribution planning, if there are multiple “designated” beneficiaries, they are required to use the life expectancy of the oldest beneficiary. If there are multiple “designated” beneficiaries and one or more other beneficiaries that are not “designated,” then the beneficiaries are limited to using the remaining nonrecalculated life expectancy of the deceased IRA owner if the owner dies after the RBD. If death is prior to the RBD, complete distribution must be made by December 31 of the year containing the fifth anniversary of the IRA owner’s death.

This begs the question that if the surviving spouse would inherit any portion of the IRA by way of the elective share, are the other “designated” beneficiaries going to be deprived of the income tax deferral based on their life expectancies or the life expectancy of the oldest beneficiary? This might happen if the elective share issue is not determined by September 309 of the year after the IRA owner’s death. This seems more probable under the final regulations since the IRS accelerated the determination date from December 31 to September 30 of the year following death and the window for filing for the elective share is the earlier of six months from receipt of notice of administration or two years from the date of death of the decedent.10 Furthermore, new proposed regulations §1.401(a)(9)-4, A-1 specifically state that “the fact that an employee’s interest under the plan passes to a certain individual under applicable state law does not make that individual a designated beneficiary unless the individual is designated as a beneficiary under the plan.” Also contained in the preamble of the new final regulations under “Explanation of Provisions” is the following:

The period between death and the beneficiary determination date is a period during which beneficiaries can be eliminated but not replaced with a beneficiary not designated under the plan as of the date of death. In order for an individual to be a designated beneficiary, any beneficiary must be designated under the plan or named by the employee as of the date of death.

This would seem to imply that if the spouse is not a “designated” beneficiary, then the rights and privileges afforded a spouse as beneficiary may not be available to a surviving spouse that would take the IRA by operation of law. It would appear that in order for a spouse to be considered a designated beneficiary, someone would have to disclaim in the spouse’s favor, rather than merely awarding the IRA to them as an operation of law. In the past, there have been numerous private letter rulings where spouses were allowed to roll over IRA assets when all beneficiaries of an estate or trust disclaimed, or when the IRA has been left to the estate and there is an elective share challenge.11 Previous private letter rulings involving elective share issues with IRAs are distinguishable because in all of those cases the IRAs were left to the estate of the IRA owner. In those situations where the trust or the estate was named as beneficiary, the IRS was able to justify the rollover based on the spouse being a member of a class that was named on the beneficiary designation. The IRS has also indicated that their current intent is not to afford the same deferral opportunities to estate beneficiaries as they would afford to direct beneficiaries or trust beneficiaries. This remains to be clarified.

The second issue involves the written waiver of rights to qualified plan property made by the spouse prior to the death of the decedent. The elective share statute does not specify this to include ERISA waivers (which are required prior to rolling most assets into an IRA from a qualified plan), but apparently the Augmented Share Committee intended for ERISA waivers to be included since they are specified in the committee notes.12 There are two basic types of ERISA waivers: qualified joint and survivor annuity waivers (QJSA) and qualified preretirement survivor annuity waivers (QPSA). These waivers require the signature of the nonemployee spouse in order to distribute monies out of the plan in an alternate form, such as rolling over plan assets into an IRA. Spousal consent is not required for distributions made in the form of a QJSA,13 but it is required for any distribution prior to the normal retirement age, as well as when payments are subject to immediate distribution. These requirements apply to all defined benefit plans and any defined contribution plan that is covered by IRC §412, meaning that money purchase plans are included but profit sharing plans and stock bonus plans are exempt. The plan document can also require waivers even if federal law does not. If taken literally, the elective share statute would include any ERISA waiver that a spouse would sign in order for the participant to execute a rollover into an IRA.

Section 205 of ERISA sets out the procedural requirements for a spouse to effectively waive his or her rights.14 Furthermore, for a waiver of any right to be effective under Florida law, it should be an informed waiver, and after marriage full disclosure is required.15 One of the problems this may present is that many plan trustees and administrators are out of state and more than likely unaware of the elective share statute. When a participant/employee is about to retire, they are usually sent a packet of forms to be completed to accomplish a rollover of their pension or qualified plan assets into an IRA. The spousal ERISA waiver is usually required at that time. It would seem highly unlikely that a plan trustee or administrator would advise a spouse that by signing the ERISA waiver they are effectively waiving their rights under Florida’s elective share statute. Furthermore, most participants and their spouses do not seek legal advice or, for that matter, professional counsel at all, when executing rollover forms. Consequently, the likelihood of the ERISA waiver being a truly informed waiver appears remote.

IRAs are not covered by ERISA or REA and do not require that a spouse be named as beneficiary. F.S. §732.702(2) requires each spouse to make a fair disclosure to the other of his or her estate if the waiver is executed after marriage. This presents a unique problem in that the spouse could sign an ERISA waiver to allow the rollover to occur, being fully informed of the value of the plan assets at the time of the rollover, with the understanding that the spouse would be named as the primary beneficiary of the IRA. Then, after the rollover has been accomplished, the IRA owner could change the designation to anyone he or she pleases. Subsequent changes to the IRA beneficiary designation do not require subsequent notice or waiver.

Another practical problem this may present is that many IRA owners combine their rollover accounts with their contributory accounts and, perhaps, even accounts that accept self-employed pension (SEP) contributions. If an IRA holds a combination of rollovers, IRA contributions and SEP contributions, including some rollover funds for which a waiver has been signed, does this negate the ERISA waiver? The elective share statute is silent on this point. If the ERISA waiver was deemed to apply only to the assets that were originally waived and rolled over, who would be responsible for reconstructing the earnings attributable for those assets? Given the often transient nature of IRA accounts, it would probably prove a difficult if not impossible task to reconstruct the sources and earnings of all funds involved, especially if the decedent had moved the account between institutions frequently. It remains unclear if a retroactive accounting would be required, and if so, whether the responsibility would fall to the personal representative or to the IRA trustees and custodians. If it is ultimately determined that the ERISA waiver would still apply to the funds originally waived, it will most likely require that IRA trustees and custodians change the way that we do business. In the past, IRA funds have been segregated if there were different beneficiaries or if part of the money was rollover money and there was a possibility that the IRA owner might want to roll those funds over to another qualified plan at some point in the future. Under EGGTRA, retirement funds are even more portable than before and this problem will be compounded if regular contributory and rollover IRAs begin to be rolled into qualified plans.

A Word about Liability of Trustees, Custodians, Other Advisors

As mentioned previously, most PLRs that address “nondesignated” spouse beneficiaries involve situations where the beneficiary was the estate of the decedent or perhaps a trust. In most of those situations, the IRA assets never left the IRA account and consequently the 60-day rule for monies to be rolled over was not an issue. The trust or estate would not have paid the income tax because the income would have been passed on to the spouse as the recipient of the funds. It seems likely that in the event a nonspouse received a taxable IRA distribution, the 60-day period may have elapsed by the time the IRA monies are awarded to the spouse by way of the elective share. Furthermore, there appear to be no PLRs addressing the rollover of IRA assets by a spouse when someone else has already been taxed on those assets. The burning question this presents for IRA trustees and custodians is whether there should be a waiting period imposed on IRA distributions to nonspouse beneficiaries when there is a surviving spouse and the potential exists for an elective share challenge. IRA trustees and custodians are protected by the elective share statute under the definition of a third party or payor for actions taken in good faith based on the governing document.16 Therefore, it seems highly unlikely that many institutions would make the business decision to delay payment to designated beneficiaries and risk invoking the wrath of those awaiting distribution. That being said, the probability of an income tax fiasco seems infinitely greater.

And what about the IRA monies being deferred while waiting for an ownership decision? Upon death of the IRA owner, investment direction is normally taken from the beneficiary. In the case of multiple individual beneficiaries, the IRA would be divided as soon as possible after the IRA owner’s death, taking into account differing investment objectives and risk tolerances among beneficiaries. Is it possible that the financial industry may now have to be concerned about the surviving spouse’s investment objective? We are all held to the prudent investor standard but we take investment direction from IRA owners or beneficiaries as to objective, directed trades or holdings.

It will be extremely important for all financial, tax, and legal advisors involved in the family estate plan to be aware of the possible pitfalls involved in the manner the IRA assets might be handled. The elective share statute gives protection to a third-party payor against action by the surviving spouse, but does not cover possible legal action taken by the nonspouse beneficiaries in the event of election against their share of the IRA. Likewise, it will not exempt a tax advisor or attorney from possible charges of malpractice from the surviving spouse if there are disastrous tax results due to inadequate planning or advice.

Possible Practice Suggestions

There are no clear answers to anything discussed here other than to alert clients that IRAs will be included in the elective share going forward. For legal practitioners, it seems that the best way to be prepared is to have a good working knowledge of the character of the client’s assets prior to their death. This has always been important, particularly with IRAs, because oftentimes sophisticated estate plans fail because the drafting attorney was unaware that the primary asset of the client was an IRA.

One possible tactic might be to structure the IRA in such a way that the nonspouse beneficiaries could disclaim in favor of the spouse in the event of a challenge. This solves the “designated beneficiary” dilemma but would likely prove most unpopular with clients. Another possibility might be to name a trust for the benefit of the nonspouse beneficiaries, including a provision within the document directing the trustee of the trust to distribute any amounts necessary to satisfy the elective share prior to December 31 of the year after the IRA owner’s date of death. These monies could be placed in a separate IRA for the elective share trust that could be construed as a separate designated beneficiary. IRA custodians and trustees might consider requiring a “hold harmless” letter to be signed by any nonspouse beneficiaries that insist on distribution prior to the deadline for an elective share challenge. This would advise the beneficiary that an elective share challenge is possible and that they are withdrawing the money with eyes wide open, aware that there may be adverse tax consequences down the road. Finally, attorneys and financial institutions should be aware that the potential for a conflict of interest exists when the same financial institution is serving as personal representative and trustee or custodian of the IRA.


There are apparently no easy answers to any of these issues. Those of us within the trust and private client services industry are held to a higher standard not by the elective share statute but by our clients, who depend on us to look out for their best interests. This duty extends to the beneficiaries of those clients. It is up to all practitioners in the area of IRA administration and retirement planning to be aware of these potential problems and to stay as well-informed as possible. At a minimum, it seems inevitable that trustees and attorneys will need to advise nonspouse beneficiaries of the possibility of an elective share challenge whenever there are IRA assets. This might potentially include the extra precaution of having waivers or hold harmless agreements signed by the nonspouse beneficiaries prior to distribution in lieu of a waiting period. Eventually, the IRS will decide the issues of tax deferral and the Florida courts will decide the issues of how and whether the contributions are collected. Ultimately, our clients look to us for tax and estate planning advice, and it is our responsibility to do what is within our power to help our clients avoid costly mistakes.

1 Fla. Stat. §732.2075(1), (2). 2 The new proposed and final regulations are included in §1.401(a)(9)-0 §1.401(a)(9)-8; §1.403(b)-2; §1.408-8; and §54.4974-2. 3 Prop. Reg. §1.401(a)(9)-4, A-3 (b) and §1.401(a)(9)-5, A-5(c)(3). 4 Fla. Stat. §§732.2135(1) and (2). 5 Fla. Stat. §222.21(2)(a). 6 Fla. Stat. §222.21(2)(b). 7 N.Y. C.L.S. E.P.T.L. §5-1.1.26. 8 Supreme Court of Florida, Amendments to Florida Probate Rules, October 11, 2001, No. SC01-1859. 9 Final Reg. §1.401(a)(9)-4, Q & A-4. 10 Fla. Stat. §§732.2135(1) and (2). 11 For example, see PLRs 200052040, 200027061, 9835005, 9710034, 9623064, 9615043, 9609052, 9524020,9247026, and 8838075. 12 Fla. Stat. §732.2045(1)(c). 13 Reg. §1.401(a)-20, Q&A 17. 14 ERISA §205(c)(2)(A)-(iii). 15 New Fla. Stat. §732.702. 16 Fla. Stat. §732.2115.