F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732

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1 F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732 will (codicil), that he (signed) (or directed another to sign for him), and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the will as a witness. (Testator) (Witness) (Witness) Subscribed and sworn to before me by, the testator, and by and, the witnesses, on, 19_ (Notary Public) Notary Seal My Commission Expires: History.-s. 1, ch ; s. 21. ch ; s. 12. ch Note.-Created from former s Who may witness.- (1) Any person competent to be a witness may act as a witness to a will. (2) A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness. History.-s. 1, ch ; s. 22, ch ; s. 1, ch ; s. 268, ch Revocation by writing.-a will or codicil, or any part of either, is revoked: (1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency exists. (2) By a subsequent written will, codicil, or other writing declaring the revocation, if the same formalities required for the execution of wills are observed in the execution of the will, codicil, or other writing. History.-s. 1. ch ; s. 23, ch ; s. 13, ch ; s. 269, ch Note.-Created from former ss Revocation by act.-a will or codicil is revoked by the testator, or some other person in his presence and at his direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. History.-s. 1, ch ; s. 23, ch Note.-Created from formers Effect of subsequent marriage, birth, or dissolution of marriage.- (1) Neither subsequent marriage nor subsequent marriage and birth or adoption of lineal descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss and , regardless of the prior will. (2) All wills made by husband and wife whose marriage has been subsequently dissolved or who become divorced shall become void by means of the dissolution of marriage or divorce as the will affects the surviving divorced spouse. History.-s. 1, ch ; s. 113, ch Note.-Created from former ss , , Revival by revocation.- (1) The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will (2) The revocation of a codicil to a will does not revoke the will, and, in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provisions of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been executed. History.-s. 1, ch ; s. 25. ch Note.-Created from formers Revocation of codicil.-the revocation of a will revokes all codicils to that will. History.-s. 1. ch ; s. 113, ch Note.-Created from formers Republication of wills by codicil.-the execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. History.-s. 1. ch ; s. 113, ch Note.-Created from formers Republication of wills by reexecution.-lf a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by its reexecution or the execution of a codicil republishing it with the formalities required by this law for the execution of wills. History.-s. 1. ch ; s. 113, ch Note.-Created from former s Incorporation by reference.- (1) A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. (2) A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will or trust by another person is such an event. History.-s. 1, ch ; s. 27, ch Devises to trustee.- (1) A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or by a written instrument subscribed concurrently with making of the will, if the written instrument is identified in the will. (2) The devise shall not be invalid for any or all of the following reasons: (a) Because the trust is amendable or revocable, or both, by any person. (b) Because the trust has been amended or revoked in part after execution of the will or a codicil to it. (c) Because the trust instrument or any amendment to it was not executed in the manner required for wills. (d) Because the only res of the trust is the possible expectancy of receiving, as a named beneficiary, death benefits as described ins , and even though the testator or other person has reserved any or all rights of ownership in such death benefit policy, contract, or plan, including the right to change the beneficiary. (e) Because of any of the provisions of s (3) The devise shall dispose of property under the

2 Ch. 732 PROBATE CODE: INTESTATE SUCCESSION AND WILLS F.S terms of the instrument that created the trust as theretofore or thereafter amended. (4) An entire revocation of the trust by an instrument in writing before the testator's death shall invalidate the devise or bequest. (5) Unless the will provides otherwise, the property devised shall not be held under a testamentary trust of the testator but shall become a part of the principal of the trust to which it is devised. (6) This section shall be cumulative to all laws touching upon the subject matter. History.-s. 1, ch ; s. 3, ch ; s. 113, ch Note.- Created from formers Vesting of devises.-the death of the testator is the event that vests the right to devises unless the testator in his will has provided that some other event must happen before a devise shall vest. History.-s. 1, ch ; ss. 28, 11 3, ch Note.-Created from former ss and Separate writing identifying devises of tangible property.-a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one in existence at the time of the testator's death. It may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. History.- s. 1, ch ; s. 29, ch Effect of fraud, duress, mistake, and undue influence.-a will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. History.- s. 31, ch cf.-s Killer not entitled to receive benefits under victim's wi ll Penalty clause for contest-a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable. History.- s. 1, ch ; s. 113, ch PART VI RULES OF CONSTRUCTION unpaid proceeds of sale, condemnation, or insurance. Exercise of power of appointment. Construction of generic terms. Ademption by satisfaction. Devises to be per stirpes Rules of construction and intention. (1) The intention of the testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will. (2) Subject to the foregoing, a will is construed to pass all property which the testator owns at his death, including property acquired after the execution of the will. History.-s. 1, ch ; ss. 33, 35, ch Note.-Created from former ss and Simultaneous Death Law.- (1) When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this law. (2) When two or more beneficiaries are designated to take successively by reason of survivorship under another person 's disposition of property and there is insufficient evidence that the beneficiaries died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal parts as there are successive beneficiaries and the parts shall be distributed to those who would have taken if each designated beneficiary had survived. (3) When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants. (4) When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. (5) This law shall not apply in the case of wills, living trusts, deeds, or contracts of insurance in which provision has been made for distribution of property different from the provisions of this law. History.-s. 1, ch ; s. 34, ch Note.-Created from former s cf.-s Killer not entitled to receive property by reason of victim's death Rules of construction and intention. Simultaneous Death Law. Antilapse; deceased devisee; class gifts. Failure of testamentary provision. Change in securities; accessions; nonademption. Nonademption of specific devises in certain cases; sale by guardian of the property; Antilapse; deceased devisee; class gifts. -Unless a contrary intention appears in the will : (1) If a devisee who is a grandparent, or a lineal descendant of a grandparent, of the testator: (a) Is dead at the time of the execution of the will, (b) Fails to survive the testator, or (c) Is required by the will to be treated as if he predeceased the testator,

3 F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732 then the descendants of the devisee take per stirpes in place of the deceased devisee. A person who would have been a devisee under a class gift if he had survived the testator shall be a devisee for purposes of this section whether his death occurred before or after the execution of the will. (2) If a devisee who is not a grandparent, or a descendant of a grandparent, of the testator: (a) Is dead at the time of the execution of the will, (b) Fails to survive the testator, or (c) Is required by the will to be treated as if he predeceased the testator, then the testamentary disposition to the devisee shall lapse unless an intention to substitute another in his place appears in the will. History.-s. 1, ch : s. 36, ch Note.-Crea1ed from formers Failure of testamentary provision.- (1) Except as provided ins , if a devise other than a residuary devise fails for any reason, it becomes a part of the residue. (2) Except as provided in s , if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to the other residuary devisees in proportion to their interests in the residue. History.-s. 1, ch : s. 113, ch Change in securities; accessions; non ademption.- (1) If the testator intended a specific devise of certain securities rather than their equivalent value, the specific devisee is entitled only to: (a) As much of the devised securities as is a part of the estate at the time of the testator's death. (b) Any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options. (c) Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity. (2) Distributions before death of a specifically devised security not provided for in subsection (1) are not part of the specific devise. History.-s. 1, ch : s. 11 3, ch Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance.- (1) If specifically devised property is sold by a guardian of the property for the care and maintenance of the ward or if a condemnation award or insurance proceeds are paid to a guardian of the property as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by 1 year. The right of the 1403 specific devisee under this subsection is reduced by any right he has under subsection (2). (2) A specific devisee has the right to the remaining specifically devised property and : (a) Any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest. (b) Any amount of a condemnation award for the taking of the property unpaid at death. (c) Any proceeds unpaid at death on fire or casualty insurance on the property. (d) Property owned by the testator at his death as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation. History.-s. 1, ch : s. 38, ch Exercise of power of appointment-a general residuary clause in a will, or a will making general disposition of all the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power. Hlstory.-s. 1, ch : s. 38, ch Construction of generic terms.-adopted persons and persons born out of wedlock are included in class gift terminology and terms of relationship, in accordance with rules for determining relationships for purposes of intestate succession. History.-s. 1, ch : s. 38, ch Ademption by satisfaction.-property that a testator gave to a person in the testator's lifetime is treated as a satisfaction of a devise to that person, in whole or in part, only if the will provides for deduction of the lifetime gift, the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purposes of part satisfaction, property given during the testator's lifetime is valued at the time the devisee came into possession or enjoyment of the property or at the time of the death of the testator, whichever occurs first. Hlstory.- s. 1, ch : s. 38, ch Devises to be per stirpes.-unless the will provides otherwise, all devises shall be per stirpes. Hlstory.- s. 1, ch : s. 38, ch PART VII CONTRACTUAL ARRANGEMENTS RELATING TO DEATH Agreements concerning succession Waiver of right to elect and of other rights Agreements concerning succession. (1) No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed

4 Ch. 732 PROBATE CODE: INTESTATE SUCCESSION AND WILLS F.S by the agreeing party in the presence of two attesting witnesses. (2) The execution of a joint will or mutual wills neither creates a presumption of a contract to make a will nor creates a presumption of a contract not to revoke the will or wills. Hletory.-s. 1, ch ; s. 39, ch Note.-Created lrom former s Waiver of right to elect and of other rights. (1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family al lowance, or any of them, may be waived, wholly or part ly, before or after marriage, by a written contract, agree ment, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement. (2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage. Hietory.-s. 1, ch ; s. 39, ch ; s. 14, ch. 77-fl7. PART VIII GENERAL PROVISIONS Disclaimer of interests in property passing by will or intestate succession or under certain powers of appointment Killer not entitled to receive property or other benefits by reason of victim's death Charitable devises Provisions relating to cremation Disclaimer of interests in property passing by will or intestate succession or under certain powers of appointment.- (1) DEFINITIONS.-For purposes of this section: (a) "Beneficiary" means a person who would succeed to an interest in property in any manner described in subsection (2). (b) "Decedent" means the person by whom an interest in property was created or from whom it would have been received by a beneficiary. (c) "Power of appointment" means any power described in subparagraph (d) (d) An "interest in property" that may be disclaimed shall include: 1. The whole of any property, real or personal, legal or equitable, present or future interest, or any fractional part, share, or portion of property or specific assets thereof. 2. Any estate in the property. 3. Any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to it. (2) SCOPE OF RIGHT TO DISCLAIM.- (a) A beneficiary may disclaim his succession to any interest in property that, unless disclaimed, would pass to the beneficiary: 1. By intestate succession or devise. 2. Under descent of homestead, exempt property, or family allowance or under s Through exercise or nonexercise of a power of appointment exercisable by will. 4. Through testamentary exercise or nonexercise of a power of appointment exercisable by either deed or will. 5. As beneficiary of a testamentary trust. 6. As a beneficiary of a testamentary gift to any nontestamentary trust. 7. As donee of a power of appointment created by will. 8. By succession in any manner described in this subsection to a disclaimed interest. 9. In any manner not specifically enumerated herein under a testamentary instrument. (b) Disclaimer may be made for a minor, incompetent, incapacitated person, or deceased beneficiary by the guardian or personal representative if the court having jurisdiction of the estate of the minor, incompetent, incapacitated person, or deceased beneficiary finds that the disclaimer: 1. Is in the best interests of those interested in the estate of the beneficiary and of those who take the beneficiary's interest by virtue of the disclaimer and 2. Is not detrimental to the best interests of the beneficiary. The determination shall be made on a petition filed for that purpose and served on all interested persons. If ordered by the court, the guardian or personal representative shall execute and record the disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary could disclaim if he were living, of legal age, and competent. (3) DISPOSITION OF DISCLAIMED INTERESTS. (a) Unless the decedent or a donee of a power of appointment has otherwise provided by will or other appropriate instrument with reference to the possibility of a disclaimer by the beneficiary, the interest disclaimed shall descend, be distributed, or otherwise be disposed of in the same manner as if the disclaimant had died immediately preceding the death or other event that caused him to become finally ascertained as a beneficiary and his interest to become indefeasibly fixed both in quality and quantity. The disclaimer shall relate to that date for all purposes, whether recorded before or after the death or other event. An interest in property dis-

5 F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732 claimed shall never vest in the disclaimant. If the provisions of s would have been applicable had the disclaimant in fact died immediately preceding the death or other event, they shall be applicable to the disclaimed interest. (b) Unless his disclaimer instrument so provides, a beneficiary who disclaims any interest that would pass to him in any manner described in subsection (2) shall not be excluded from sharing in any other interest to which he may be entitled in any manner described in the subsection, including subparagraph (2)(a)8., even though the interest includes disclaimed assets by virtue of the beneficiary's disclaimer. (4) FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER INSTRUMENTS.- (a) To be a disclaimer, a writing shall declare the disclaimer and its extent, describe the interest in property disclaimed, and be signed, witnessed, and acknowledged in the manner provided for the conveyance of real property. (b) A disclaimer shall be effective and irrevocable when the instrument is recorded by the clerk where the estate of the decedent is or has been administered. If no administration has been commenced, recording may be made with the clerk of any county where venue of administration is proper. (c) The person disclaiming shall deliver or mail a copy of the disclaimer instrument to the personal representative, trustee, or other person having legal title to, or possession of, the property in which the disclaimed interest exists. No representative, trustee, or other person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is waived or barred as hereinafter provided, for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual notice of the facts constituting the waiver or barring the right to disclaim. (5) TIME FOR RECORDING DISCLAIMER.-A disclaimer shall be recorded at any time after the creation of the interest, but in any event within 9 months after the event giving rise to the right to disclaim, including the death of the decedent; or, if the disclaimant is not finally ascertained as a beneficiary or his interest has not become indefeasibly fixed both in quality and quantity at the death of the decedent, then the disclaimer shall be recorded not later than 6 months after the event that would cause him to become finally ascertained and his interest to become indefeasibly fixed both in quality and quantity. However, a disclaimer may be recorded at any time after the creation of the interest, upon the written consent of all interested parties as provided in s (6) WAIVER OR BAR TO RIGHT TO DISCLAIM. (a) The right to disclaim otherwise conferred by this section shall be barred if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim and also by: 1. Making a voluntary assignment or transfer of, a contract to assign or transfer, or an encumbrance of, an interest in real or personal property Giving a written waiver of the right to disclaim the succession to an interest in real or personal property. 3. Making any sale or other disposition of an interest in real or personal property pursuant to judicial process by the beneficiary before he has recorded a disclaimer. (b) The acceptance, assignment, transfer, encumbrance, or written waiver of the right to disclaim a part of an interest in property, or the sale pursuant to judicial process of a part of an interest in property, shall not bar the right to disclaim any other part of the interest in property. (7) EFFECT OF RESTRAINTS.- The right to disclaim granted by this section shall exist irrespective of any limitation imposed on the interest of the disclaimant in the nature of an express or implied spendthrift provision or similar restriction. (8) RIGHT TO DISCLAIM UNDER OTHER LAW NOT ABRIDGED.- This law shall not abridge the right of any person to disclaim, renounce, alienate, release, or otherwise transfer or dispose of any interest in property under any other existing or future law. Hlatory.-s. 1, ch : s. 40, ch : s. 15, ch Note.- Created from formers Killer not entitled to receive property or other benefits by reason of victim's death.- (1) A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent. (2) Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by survivorship. This provision applies to joint tenancies with right of survivorship and tenancies by the entirety in real and personal property; joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions; and any other form of coownership with survivorship incidents. (3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent. (4) Any other acquisition of property or interest by the killer, including a life estate in homestead property, shall be treated in accordance with the principles of this section. (5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

6 Ch. 732 PROBATE CODE: INTESTATE SUCCESSION AND WILLS F.S.1~ (6) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer for value and without notice property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section. Hlatory.-s. 1, ch : s. 113, ch : s. 1, ch Note.-Created from formers cf.-s Murder Charitable devises.- (1) If a testator dies leaving lineal descendants or a spouse and his will devises part or all of the testator's estate: (a) To a benevolent, charitable, educational, literary, scientific, religious, or missionary institution, corporation, association, or purpose, (b) To this state, any other state or country, or a county, city, or town in this or any other state or country, or (c) To a person in trust for any such purpose or beneficiary, whether or not the trust appears on the face of the instrument making the devise, the devise shall be avoided in its entirety if one or more of the lineal descendants or a spouse who would receive any interest in the devise, if avoided, files written notice to this effect in the administration proceeding within 4 months after the date letters are issued, unless: (d) The will was duly executed at least 6 months before the testator's death, or (e) The testator made a valid charitable devise in substantially the same amount for the same purpose or to the same beneficiary, or to a person in trust for the same purpose or beneficiary, as was made in the last will or by a will or a series of wills duly executed immediately next to the last will, one of which was executed more than 6 months before the testator's death. (2) The testator's making of a codicil that does not substantially change a charitable devise as herein defined within the 6-month period before the testator's death shall not render the charitable gift voidable under this section. Hlatory.-s. 1, ch : s. 42, ch : s. 16, ch : s. 1, ch Note.-Created from former s Provisions relating to cremation.-the fact that cremation occurred pursuant to a provision of a will or any written contract signed by the decedent iri which he expressed his intent that his body be cremated is a complete defense to a cause of action against the personal representative or person providing the services. Hiatory.-s. 1, ch : s. 43, ch PART IX PRODUCTION OF WILLS Production of wills Production of wills. (1) The custodian o'f a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. Willful failure to do so shall render the custodian responsible for all costs and damages sustained by anyone if the court finds that the custodian had no just or reasonable cause for withholding the deposit of the will. (2) By petition and notice of it served on him, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1 ). All costs, damages, and a reasonable attorney's fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for withholding the deposit of hie will. Hlatory.-s. 1, ch : s. 44, ch Note.-Created from former s PART X ANATOMICAL GIFTS Legislative declaration. Definitions. Persons who may make an anatomical gift. Persons who may become donees; purposes for which anatomical gifts may be made. Manner of executing anatomical gifts. Delivery of document. Amendment or revocation of the gift. Rights and duties at death. Eye banks. Corneal removal by medical examiners. Enucleation of eyes by licensed funeral directors. Donations as part of driver license or identification card process. Education program relating to anatomical gifts. Duty of certain hospital administrators Legislative declaration.-because of the rapid medical progress in the fields of tissue and organ preservation, transplantation of tissue, and tissue culture, and because it is in the public interest to aid the medical developments in these fields, the Legislature in enacting this part intends to encourage and aid the development of reconstructive medicine and surgery and the development of medical research by facilitating premortem and postmortem authorizations for donations of tissue and organs. It is the purpose of this part to regulate the gift of a body or parts of a body, the gift to be made after the death of a donor. Hlatory.-s. 1, ch ; s. 113, ch : s. 3, ch Note.-Created from former s cf.-s Purchase or sale of body organs and tissue prohibited Definitions.-For the purpose of this part: (1) "Bank" or "storage facility" means a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or parts thereof. (2) "Donor" means an individual who makes a gift of all or part of his body.

7 F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732 (3) "Hospital" means a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States Government or a state, or a subdivision thereof, although not required to be licensed under state laws. (4) "Physician" or "surgeon" means a physician or surgeon licensed to practice under chapter 458 or chapter 459 or similar laws of any state. "Surgeon" includes dental or oral surgeon. History.-s. 1, ch ; s. 113, ch Note.-Created from former s Persons who may make an anatomical gift. (1) Any person who may make a will may give all or part of his body for any purpose specified in s , the gift to take effect upon death. (2) In the order of priority stated and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, any of the following persons may give all or any part of the decedent's body for any purpose specified in s : (a) The spouse of the decedent; (b) An adult son or daughter of the decedent; (c) Either parent of the decedent; (d) An adult brother or sister of the decedent; (e) A guardian of the person of the decedent at the time of his death; or (f) A representative ad litem who shall be appointed by a court of competent jurisdiction forthwith upon a petition heard ex parte filed by any person, which representative ad litem shall ascertain that no person of higher priority exists who objects to the gift of all or any part of the decedent's body and that no evidence exists of the decedent's having made a communication expressing a desire that his body or body parts not be donated upon death; but no gift shall be made by the spouse if any adult son or daughter objects, and provided that those of higher priority, if they are reasonably available, have been contacted and made aware of the proposed gift, and further provided that a reasonable search is made to show that there would have beer) no objection on religious grounds by the decedent. (3) If the donee has actual notice of contrary indications by the decedent or objection of an adult son or daughter or actual notice that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift. (4) The person authorized by subsection (2) may make the gift after the decedent's death or immediately before the decedent's death. (5) A gift of all or part of a body authorizes any examinat.ion necessary to assure medical acceptability of the gift for the purposes intended. (6) The rights of the donee created by the gift are paramount to the rights of others, except as provided by s History.-s. 1, ch ; s. 45, ch ; s. 4, ch ; s. 62, ch Note.-Created from former s Persons who may become donees; purposes for which anatomical gifts may be made.-the 1407 following persons may become donees of gifts of bodies or parts of them for the purposes stated: ( 1) Any hospital, surgeon, or physician for medical or dental education or research, advancement of medical or dental science, therapy, or transplantation. (2) Any accredited medical or dental school, college, or university for education, research, advancement of medical or dental science, or therapy. (3) Any bank or storage facility for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation. (4) Any specified individual for therapy or transplantation needed by him. Hlstory.-s. 1, ch ; s. 45, ch Note.-Created from former s Manner of executing anatomical gifts. (1) A gift of all or part of the body under s (1) may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated or if it is declared invalid for testamentary purposes, the gift is nevertheless valid to the extent that it has been acted upon in good faith. (2)(a) A gift of all or part of the body under s (1) may also be made by a document other than a will. The gift becomes effective upon the death of the donor. The document must be signed by the donor in the presence of two witnesses who shall sign the document in his presence. If the donor cannot sign, the document may be signed for him at his direction and in his presence and the presence of two witnesses who must sign the document in his presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid. (b) The following form of written instrument shall be sufficient for any person to give all or part of his body for the purposes of this part: UNIFORM DONOR CARD The undersigned hereby makes this anatomical gift, if medically acceptable, to take effect on death. The words and marks below indicate my desires: I give: (a) any needed organs or parts; (b) only the following organs or parts [Specify the organ(s) or part(sll for the purpose of transplantation, therapy, medical research, or education; (c) my body for anatomical study if needed. Limitations or special wishes, if any: (If applicable list specific donee) Signed by the donor and the following witnesses in the presence of each other:!signature of donor)!date signed)!witness)!address)!date of birth of donor)!city and State)!Witness)!Address) (3) The gift may be made to a specified donee or without specifying a donee. In the latter case, the gift may be accepted by the attending physician as donee upon or following the donor's death. If the gift is made

8 Ch. 732 PROBATE CODE: INTESTATE SUCCESSION AND WILLS F.S to a specified donee who is not available at the time and place of death, the attending physician may accept the gift as donee upon or following death in the absence of any expressed indication that the donor desired otherwise. The physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part. (4) Notwithstanding s (2), the donor may designate in his will or other document of gift the surgeon or physician to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon or physician for the purpose. (5) Any gift by a person designated in s (2) shall be made by a document signed by him or made by his telegraphic, recorded telephonic, or other recorded message. History.-s. 1, ch ; s. 45, ch ; s. 1, ch Note.-Created from former s Delivery of document.- (1) If a gift is made through the program established by the Department of Health and Rehabilitative Services and the Department of Highway Safety and Motor Vehicles under the authority of s , the completed donor registration card shall be delivered to the Department of Highway Safety and Motor Vehicles and recorded on microfilm, but delivery is not necessary to the validity of the gift. If the donor withdraws the gift, the records of the Department of Highway Safety and Motor Vehicles shall be updated to reflect such withdrawal. (2) If a gift is not made through the program established by the Department of Health and Rehabilitative Services and the Department of Highway Safety and Motor Vehicles under the authority of s and is made by the donor to a specified donee, the document, other than a will, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. Such document may be deposited in any hospital, bank, storage facility, or registry office that accepts such documents for safekeeping or for facilitation of procedures after death. (3) On the request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination. History.-s. 1, ch ; s. 45, ch ; s. 2, ch ; s. 1, ch Note.-Created from former s Amendment or revocation of the gift. (1) If the will or other document authorized under the provisions of s (2) has been delivered to a specified donee, the donor may amend or revoke the gift by: (a) The execution and delivery to the donee of a signed statement. (b) An oral statement made in the presence of two persons and communicated to the donee. (c) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee. (d) A signed document found on his person or in his effects (2) A document of gift that has not been delivered to the donee may be revoked by the donor in the manner set out in subsection (1) or by destruction, cancellation, or mutilation of the document. (3) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (1 ). Hiatory.-s. 1, ch ; s. 113, ch ; s. 3, ch Note.-Created from former s Rights and duties at death.- (1) The donee, as specified under the provisions of s (2), may accept or reject the gift. If the donee accepts a gift of the entire body or a part of the body to be used for scientific purposes other than a transplant, he may authorize embalming and the use of the body in funeral services, subject to the terms of the gift. If the gift is of a part of the body, the donee shall cause the part to be removed without unnecessary mutilation upon the death of the donor and before or after embalming. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body. (2) The time of death shall be determined by a physician who attends the donor at his death or, if there is no such physician, the physician who certifies the death. This physician shall not participate in the procedures for removing or transplanting a part. (3) A person who acts in good faith and without negligence in accord with the terms of this part or under the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution for his acts in any criminal proceeding. (4) The provisions of this part are subject to the laws of this state prescribing powers and duties with respect to autopsies. Hiatory.-s. 1, ch ; s. 45, ch ; s. 4, ch Note.-Created from former s Eye banks.- (1) Any state, county, district, or other public hospital may purchase and provide the necessary facilities and equipment to establish and maintain an eye bank for restoration of sight purposes. (2) The Department of Education may have prepared, printed, and distributed: (a) A form document of gift for a gift of the eyes. (b) An eye bank register consisting of the names of persons who have executed documents for the gift of their eyes. (c) Wallet cards reciting the document of gift. Hiatory.-s. 1, ch ; s. 45, ch ; s. 462, ch Note.-Created from former s Corneal removal by medical examiners. (1) In any case in which a patient is in need of corneal tissue for a transplant, a district medical examiner or an appropriately qualified designee with training in ophthalmologic techniques may, upon request of any eye bank authorized under s , provide the cornea of a decedent whenever all of the following conditions are met: (a) A decedent who may provide a suitable cornea for the transplant is under the jurisdiction of the medical

9 F.S PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732 examiner and an autopsy is required in accordance with s (b) No objection by the next of kin of the decedent is known by the medical examiner. (c) The removal of the cornea will not interfere with the subsequent course of an investigation or autopsy. (2) Neither the district medical examiner nor his appropriately qualified designee nor any eye bank authorized under s may be held liable in any civil or criminal action for failure to obtain consent of the next of kin. Hlstory.-s. 1, ch ; s. 1, ch visions of this section according to the provisions of chapter 120. (3) Funds expended by the Department of Health and Rehabilitative Services to carry out the intent of this section shall not be taken from any funds appropriated for patient care. History.-s. 1, ch ; s. 1, ch ; s. 463, ch ; s. 1, ch ; ss. 1, 2, ch ; s. 5, ch Education program relating to anatomical gifts.-the Department of Health and Rehabilitative Services, subject to the concurrence of the Department of Highway Safety and Motor Vehicles, shall develop a continuing program to educate and inform medical professionals, law enforcement agencies and officers, and Enucleation of eyes by licensed funeral directors.-with respect to a gift of an eye as provided the public regarding the laws of this state relating to anatomical gifts and the need for anatomical gifts. for in this part, a licensed funeral director as defined in chapter 470 who has completed a course in eye enucleation and has received a certificate of competence from (1) The program shall be implemented by contract with one or more medical schools located in the state. the Department of Ophthalmology of the University of (2) The Legislature finds that particular difficulties Florida School of Medicine, the University of South Florida School of Medicine, or the University of Miami School exist in making members of the various minority communities within the state aware of laws relating to anatomical gifts and the need for anatomical gifts. Therefore, the of Medicine may enucleate eyes for gift after proper certification of death by a physician and in compliance with program shall include, as a demonstration project, activities especially targeted at providing such information to the intent of the gift as defined in this chapter. No properly certified funeral director acting in accordance with the nonwhite, Hispanic, and Caribbean populations of the terms of this part shall have any civil or criminal liability for eye enucleation. the state. (3) The Department of Health and Rehabilitative Services shall, no later than March 1 of each year, submit Hlstory.-s. 1, ch ; s. 45, ch ; s. 1, ch Note.-Created from former s a report to the Legislature containing statistical data on Donations as part of driver license or iden- the effectiveness of the program in procuring donor or- tification card process.- (1) The Department of Health and Rehabilitative Ser- for health care. vices and the Department of Highway Safety and Motor History.-s. 1, ch gans and the effect of the program on state spending Vehicles shall develop and implement a program en Duty of certain hospital administrators.- couraging and allowing persons to make anatomical ( 1 ) When used in th is section, "hospital" means any gifts as a part of the process of issuing identification establishment licensed under chapter 395 except psycards and issuing and renewing driver licenses. The do- chiatric and rehabilitation hospitals. nor registration card distributed by the Department of (2) Where, based on accepted medical standards, Highway Safety and Motor Vehicles shall include the rna- a hospital patient is a suitable candidate for organ or tisterial specified by s (2)(b) and may require such sue donation, the hospital administrator or his designee additional information, and include such additional ma- shall at or near the time of death request any of the perterial, as may be deemed necessary by that department. sons specified in s , in the order of priority stat The Department of Highway Safety and Motor Vehicles ed, when persons in prior classes are not available and shall also develop and implement a program to identify in the absence of actual notice of contrary intentions by donors, which program may include notations on identi- the decedent or actual notice of opposition by a member fication cards, driver licenses, and driver records or such of any of the classes specified in s , to consent other methods as the department may develop. The De- to the gift of all or any part of the decedent's body for partment of Health and Rehabilitative Services shall pro- any purpose specified in this part. vide the necessary supplies and forms through funds (3) Where the hospital administrator or his designee appropriated from general revenue or contributions from has actual notice of opposition from any of the persons interested voluntary, nonprofit organizations. The De- specified in s , such gift of all or any part of the partment of Highway Safety and Motor Vehicles shall decedent's body shall not be requested. Except as proprovide the necessary record keeping system through vided in s , in the absence of actual notice of opfunds appropriated from general revenue. The Depart- position, consent or refusal need only be obtained from ment of Highway Safety and Motor Vehicles and the De- the person or persons in the highest priority class availpartment of Health and Rehabilitative Services shall in- able. cur no liability in connection with the performance of any (4) A gift made pursuant to a request required by acts authorized herein. this section shall be executed pursuant to s (2) The Department of Highway Safety and Motor (5) The Department of Health and Rehabilitative Ser- Vehicles, after consultation with and concurrence by the vices shall establish rules and guidelines concerning the Department of Health and Rehabilitative Services, shall education of individuals who may be designated to perpromulgate rules and regulations to implement the pro- form the request and the procedures to be used in mak- 1409