## Facts

- Frances M. Janien and her husband, Cedric J. Janien, purchased a Massachusetts home in 1971; in 1973 Cedric conveyed his interest to Frances, making her sole owner.
- Frances’s 1982 Florida will gave Cedric a life estate in her Florida and Massachusetts residences, with Cedric responsible for maintenance and taxes and prohibited from selling the life estate.
- In 1989, Frances transferred the Massachusetts home to a nominee real estate trust governed by Massachusetts law; the home was the trust’s only asset, Frances was the sole beneficiary, and her son, C. Christopher Janien, was trustee.
- In a 1989 Massachusetts will, Frances devised her beneficial interest in the nominee trust to her trustee, while granting Cedric the right to exclusively occupy the residence for life; Cedric was to pay expenses if financially able, and the trustee was authorized and directed to mortgage the property to cover expenses if Cedric could not pay.
- Frances later executed a 1997 Florida will that maintained the same basic arrangement for the Massachusetts residence: Christopher received the beneficial interest and Cedric received lifetime exclusive occupancy with expense provisions.
- After Frances died as a Florida resident, the 1997 will was admitted to probate in Florida and Cedric timely elected to take an elective share.
- Christopher, as personal representative of the estate, sought a ruling that the will provisions and nominee trust constituted an “elective share trust” under Florida law and therefore satisfied Cedric’s elective share; the probate court rejected that claim.

## Issues

1. Whether the will provisions and nominee real estate trust created an “elective share trust” as defined by section 732.2025(2), Florida Statutes (2005), such that the surviving spouse’s elective share was satisfied.

## Decision

- The Fourth District Court of Appeal affirmed the probate court.
- The court held the instruments did not create an elective share trust within the meaning of section 732.2025(2).
- Cedric’s right to exclusive lifetime occupancy of the Massachusetts home did not, by itself, meet the statutory requirements for an elective share trust.

## Legal Principles

- An “elective share trust” exists only if the trust satisfies the statutory elements in section 732.2025(2), Florida Statutes (2005), including protections ensuring the surviving spouse’s qualifying beneficial enjoyment (such as entitlement to trust income or qualifying use and related statutory rights and limits).
- A testamentary arrangement granting a surviving spouse a personal right to occupy a particular residence for life, while transferring the beneficial ownership of the trust interest to another, may fail to qualify as an elective share trust when it does not provide the statutorily required spousal rights and restrictions.
- Courts apply the elective share trust definition as a statutory compliance inquiry; arrangements that resemble some trust-like benefits are insufficient if the required statutory conditions are not met.

## Conclusion

The appellate court affirmed that Frances’s plan—giving Cedric lifetime exclusive occupancy of the Massachusetts residence while leaving the trust’s beneficial interest to Christopher—did not satisfy Florida’s statutory definition of an elective share trust, so Cedric’s elective share was not deemed satisfied by that arrangement alone.


Janien v. Janien, 939 So. 2d 264 (Fla. Dist. Ct. App. 4th Dist. 2006)