Florida Statute 733.817
“Apportionment of estate taxes”
What it means
If a death triggers estate tax, §733.817 — one of the longest sections in the Probate Code — decides who bears it. The default is apportionment: each recipient of property included in the taxable estate bears the tax attributable to what they received — probate beneficiaries, trust beneficiaries, and recipients of nonprobate assets alike — with tax on probate and revocable-trust gifts generally charged to the residue before specific gifts are touched.
A will or trust can override this only by express direction; generic debt-payment clauses are not enough. Federal rights of recovery — like the IRC §2207A recovery against QTIP trust property — survive unless expressly waived. The personal representative may withhold distributions until each share of the tax is paid.
- Default rule: the net tax is apportioned — each recipient of the taxable estate bears the tax attributable to their interest.
- Within the probate estate and revocable trusts, tax is generally paid from the residue first.
- Overriding the default takes an express direction in the will or trust — general “pay my debts” language is insufficient.
- The federal §2207A recovery against QTIP property is preserved unless expressly waived.
- The personal representative may withhold distribution until a recipient's share of the tax is paid or secured.
- Interest and penalties follow the tax, subject to the court's power to reallocate them equitably.
How it plays out
Apportionment fights are blended-family fights: the retirement account goes to one side, the house to the other, and the tax bill lands where the will's drafter never thought about it. With federal exemptions high, most estates we administer owe no estate tax and §733.817 never wakes up — Florida has collected no estate tax of its own on deaths since 2005. When a taxable estate does cross our desk, the first review question is whether the tax clause is an express direction or boilerplate, because that one sentence moves the entire bill.
Where this shows up
Pages on this site where § 733.817 does real work:
Questions people ask
