Two halves, treated in opposite ways
Upon the death of a spouse, one-half of the aggregate value of the property held in a community property trust established by the settlor spouses reflects the share of the surviving spouse and is not subject to testamentary disposition by the decedent spouse or distribution under the laws of succession of the state. The other one-half of the value of that property reflects the share of the decedent spouse and is subject to testamentary disposition or distribution under the laws of succession of the state.
Section 736.1507, Florida Statutes, opening sentences.
The asymmetry is the point, and it follows from what community property means.
The survivor’s half was already theirs. It is not something they inherit, so the decedent had nothing to leave and could not have redirected it. No will reaches it, and neither does intestacy.
The decedent’s half is theirs to give. It passes under their will, or by intestacy if there is none, and it can go to children from an earlier marriage, to a charity, or to anyone else.
That is worth understanding before signing. A community property trust does not mean the survivor takes everything. It guarantees the survivor half and puts the other half entirely in the deceased spouse’s gift.
The sentence with the longest reach
The section ends with fourteen words that matter more than the rest of it.
The decedent’s spouse’s one-half share shall not be included in the elective estate.
Section 736.1507, Florida Statutes, final sentence. Quoted as printed; read in context it refers to the decedent spouse’s share.
Florida gives a surviving spouse an elective share, a right to claim 30 percent of the elective estate, whatever the will says. The elective estate is drawn very widely on purpose, reaching well beyond the probate estate to catch revocable trusts, joint accounts, and other arrangements that would otherwise be used to sidestep it.
This sentence takes the decedent’s half of a community property trust out of that pool.
The logic is coherent. The survivor already receives half of the trust outright by operation of this section, so counting the decedent’s half in the elective estate as well would let the survivor claim a share of it on top. But the practical consequence should be understood clearly by anyone signing. A community property trust reduces what a surviving spouse can claim against the deceased spouse’s wishes.
It is one of the few places in the Trust Code where a planning device is given express relief from the elective share machinery, and it is the reason this section deserves attention beyond the couple who created the trust.
Dividing it up
The split is by value, not asset by asset. The section speaks of one-half of the aggregate value of the property, and then gives the trustee the tools.
Unless the agreement says otherwise, the trustee may distribute in divided or undivided interests and adjust resulting differences in valuation. A distribution in kind may be non pro rata, pro rata, or both.
So the trustee can give the house to one side and the portfolio to the other, with a balancing adjustment, rather than putting every asset into joint names. The identical language appears in section 736.1508(3) for divorce, though there it comes with a prohibition on leaving the spouses as co-owners of real property or business interests. No equivalent prohibition appears here, which makes sense. The survivor and the decedent’s beneficiaries may perfectly well end up sharing something.
What the survivor can do next
Read this with section 736.1504(2), which is easy to miss. After the first death the surviving spouse may amend the trust as to their own half, regardless of whether the agreement provides that the community property trust is irrevocable.
So a couple cannot lock the survivor into a disposition of the survivor’s own share. And under section 736.1504(4), after the first death the survivor is deemed the only qualified beneficiary as to their share, which controls who is entitled to information and accountings.
The tax objective behind all of this is set out in section 736.1511, which ties the arrangement to a provision of the Internal Revenue Code concerning the treatment of community property on the first death.
No court has construed this section
Our review found no citing decision, with a Florida court filter and nationwide, at every precedential status.
That is the calendar rather than a finding. Part XV took effect on July 1, 2021 and this section operates on death, so a qualifying trust, a death, a dispute and an appeal all have to fit inside five years.
The elective share sentence is the one most likely to be litigated first, because it affects a surviving spouse who may not have understood what they signed, and because the elective estate provisions elsewhere in Florida law are drafted expansively to defeat exactly this kind of exclusion. How the two bodies of law fit together has not been tested.