The Florida Legislature recently amended a few of the state's probate laws, which now give Florida courts broad power to construe will and trusts in the absence of a federal estate tax. The Legislature amended Section 733.1051 of the Florida Probate Code and Section 736.04114 of the Florida Trust Code which now allows Florida Courts to exercise broad authority to "determine and effect the Testator/Settlor's probable intent in employing an inheritance formula, in the event such inheritances do not function correctly due to lack of a federal estate or generation-skipping transfer tax in 2010."

According to the Association of Corporate Counsel, "the statues allow Florida courts to consider the "terms and purposes" of the document, the "facts and circumstances" surrounding its creation and the Testators/Settlor's probable intent."

Other legislatures, such as Virginia and Utah, have handled the unexpected elimination of the federal estate tax in 2010 by construing a formula for inheritances as if the 2009 federal tax laws were still in effect. "For example, if the Will of a descendent dying in 2010 creates a credit shelter trust, these states would direct that the trust be funded with the remaining portion of the Testator's ersatz $3.5 million exclusion amount (i.e., the exclusion amount in effect in 2009)."

Florida, in comparison, will be giving its courts greater flexibility to enforce an equation that takes into account both the tax law as it stands in 2010 and the tax law as the Testator expected to be. As an example, the court, "rather than being locked into using a $3.5 million exemption amount, could choose to fund the credit shelter trust with $1.3 million in general property subject to the aggregate basis increase under Section 1022 (b) of the Code, and then place $3 million of the spousal property subject to the aggregate basis increase under Section 1022(c) of the Code into a separate martial trust for the surviving spouse.

Source: Association of Corporate Counsel "Florida legislature grants courts the broad power to construe wills and trusts in the absence of a federal estate tax" 08/01/2010