738.413 Marital deduction property not productive of income.—
(1) If a trust received property for which a gift or estate tax marital deduction was allowed, or if a trust received property satisfying the requirements of s. 732.2025(2)(a) and (c), and such property has been used in whole or in part to satisfy an election by a surviving spouse under s. 732.2125, and the settlor’s spouse holds a mandatory income interest in the trust, the spouse may require the trustee, to the extent that the trust assets otherwise do not provide the spouse with sufficient income from or use of the trust assets to qualify for the deduction, or to satisfy an election by a surviving spouse under s. 732.2125, to make the property productive of income within a reasonable time. The trustee may:
(a) Convert property to property productive of income within a reasonable time;
(b) Exercise the power to adjust under s. 738.203;
(c) Exercise the power to convert to or from a unitrust under s. 738.303; or
(d) Exercise the fiduciary’s authority under the terms of the trust to otherwise provide the surviving spouse with sufficient income from the trust assets, or the use of the trust assets, to qualify for the marital deduction, or to satisfy an election by a surviving spouse under s. 732.2125.
(2) The trustee may decide which action or combination of actions listed in subsection (1) to take.
(3) Subsection (1) shall apply even though, in the case of an elective share trust under s. 732.2025(2), a marital deduction is not made or is only partially made.
(4) The terms of a trust as defined in s. 738.102 may not supersede this section unless such terms explicitly reference this section.
History.—s. 1, ch. 2002-42; s. 24, ch. 2012-49; s. 12, ch. 2017-121; s. 32, ch. 2024-216.
