Estate of Ahlstrom v. Commissioner , 52 T.C. 220 ( 1969 )

Estate of William John Ahlstrom, Deceased, Katrina Ahlstrom Miller, Administratrix, Petitioner v. Commissioner of Internal Revenue, Respondent

Estate of Ahlstrom v. Commissioner

Docket No. 6182-66

United States Tax Court

52 T.C. 220; 1969 U.S. Tax Ct. LEXIS 134;

May 12, 1969, Filed

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Decision will be entered under Rule 50.

Under decedent's will his widow was left certain property outright and she was given a fractional interest in certain trust income. Four years after his death the widow decided to elect dower in lieu of the share of her husband's estate provided for her by the will. She, however, had failed to file timely election to take dower as required by State statute. The Probate Court subsequently permitted the untimely election, and a State trial court entered an order approving the Probate Court's action, albeit out of time, upon petition of the testamentary trustee for instructions. Held: The election to take dower which was recognized by the Probate Court was not in accordance with State law, and is not recognized for Federal tax purposes. Since no interest in property "passed" to the surviving spouse as required by sec. 2056, I.R.C. 1954, the property comprising the belatedly elected dower share does not qualify for the marital deduction.

Roger L. Davis, for the petitioner.

Susan Stivers, for the respondent.

Hoyt, Judge.

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HOYT

The respondent determined a deficiency in the petitioner's estate tax in the amount of $ 4,481.64. Petitioner conceded two issues, and a third is to be settled in a Rule 50 computation. The only issue remaining for adjudication is whether the estate is entitled to a marital deduction for the value of property passing to the decedent's widow after the surviving spouse was belatedly awarded what was called dower in an equitable State court proceeding instituted 4 years after decedent's death.

FINDINGS OF FACT

Those facts which were stipulated are found accordingly and incorporated herein by this reference.

Petitioner is the administratrix c.t.a. of the Estate of William John Ahlstrom, deceased, Katrina Ahlstrom Miller, and she will sometimes be referred to hereinafter as petitioner. On the date the petition herein was filed, petitioner's legal residence was within the State of Florida. The U.S. Estate Tax Return was filed with the district director of internal revenue at Jacksonville, Fla.

The decedent died testate on August 27, 1962. He was survived by his spouse, Marie A. Ahlstrom, and his daughter, Katrina Ahlstrom Miller.

Administration of the estate was initiated in the County Judge's Court in and for Palm Beach County, Fla., on September 7, 1962. The first notice to creditors was dated October 1, 1962, and the first publication of such notice was on October 3, 1962. Subsequent republications occurred on October 10, 1962, October 17, 1962, and October 24, 1962.

One of the principal assets of the estate was an interest in the Mary White Trust, hereinafter sometimes referred to as trust No. 1. The agreement which created the trust was made and executed on June 27, 1946, between Mary A. White as settlor, and Carl F. Ahlstrom, Mary A. White, and Lucius P. Wasserman as trustees. The trust provided for the payment of income in equal parts to Mary A. White, Carl F. Ahlstrom, and William John Ahlstrom during Mary's life. In addition, Mary was to be paid out of principal such sum as would guarantee her total payments of $ 6,000 per year. Upon Mary's death the trust was to terminate and the decedent was to receive one-half of the principal. The trust instrument further provided that if the decedent should predecease Mary A. White, his share of income and principal would be paid as directed in his will or to his estate in case of intestacy. Although the trust was subsequently modified, such modification does not affect the facts or issues presented herein.

The decedent did, in fact, predecease Mary A. White; she died on March 29, 1965. At the date of decedent's death, August 27, 1962, his interest in the trust was worth $ 325,052.30. His will provided that his interest in the corpus of trust No. 1 was to be placed in another trust, thereby created, hereinafter referred to as trust No. 2. According to the terms of the will, the decedent's income from trust No. 1 was to be distributed two-thirds to the surviving spouse, Marie A. Ahlstrom, and one-third to decedent's daughter, Katrina Ahlstrom Miller, during the lifetime of Mary A. White. Upon her death, decedent's one-half share of the corpus of trust No. 1 was to pass into trust No. 2 and the income therefrom was to continue to be paid as described above. The entire corpus of trust No. 2 was to be distributed to Katrina after the death of Marie, and in the event of Katrina's prior death to her issue per stirpes.

The original inventory and an amended inventory filed by the estate in the Probate Court did not include decedent's interest in trust No. 1 among the listed estate assets, except for accrued trust income to date of death. A final amended inventory, however, filed February 5, 1964, did include the entire trust interest, it being valued in excess of $ 315,000 at that time. Decedent's share of the corpus of trust No. 1 was finally distributed to the testamentary trustee named in Ahlstrom's will in May of 1966, approximately 1 year after Mary White's death.

During the 17-month period between William John Ahlstrom's death and the filing of the final inventory, neither the administratrix nor her attorney believed that decedent's interest in trust No. 1 was a probate asset of the estate or subject to a dower election by the widow. It was, however, shown as an estate asset in the preliminary notice filed for estate tax purposes on December 10, 1962, just a few months following Ahlstrom's death. Petitioner executed that notice as administratix c.t.a. The decedent's interest in trust No. 1 was included as an asset of the estate in the estate tax return executed by Katrina as administratrix on November 27, 1963.

Marie depended entirely upon Katrina for financial advice and, if she considered it at all, she also believed that decedent's interest in trust No. 1 was not a part of his estate. However, in mid-June of 1965 she was advised otherwise. The petitioner had discussed the matter with a friend who was an accountant and recognized that tax savings might result if the surviving spouse exercised and elected dower rights in that interest.

In May of 1966, the decendent's share of trust No. 1 was distributed to the First National Bank of Palm Beach, the trustee named in decedent's will as trustee of trust No. 2. On June 20, 1966, Marie executed a petition to the County Judge's Court in and for Palm Beach County, Fla., to permit her to elect dower rather than take under her husband's will. Although the petition was filed nearly 4 years after the decedent's death and more than 3 years after the statutory period fixed for filing such election, she alleged that the late filing was because she had not been informed that decedent's interest in trust No. 1 was subject to a dower claim. She therefore averred that she did not elect dower within the statutory 9-month period because of her erroneous belief that dower, if elected, would decrease rather than increase her share of the estate. She further alleged in her petition that it was not until June 15, 1965, about 3 months after Mary White's death, that she became aware of the true value of decedent's interest in trust No. 1 and the corresponding value of her possible dower interest in his estate; on that date, she allegedly realized that an election to take dower would greatly increase her share of the estate. This petition was filed in the Probate Court on July 8, 1966. ¹

On July 8, 1966, the County Judge's Court entered a judgment and order of dower in favor of Marie Ahlstrom, the material part of which reads as follows:

2. Marie A. Ahlstrom, as the widow of William J. Ahlstrom, is entitled to have a one-third (1/3) interest set apart to her as her dower interest in the above-named estate, and the executrix is hereby ordered and authorized to pay to Marie A. Ahlstrom a one-third (1/3) interest in all the property, both real and personal, of which decedent died seized, including a one-third (1/3) interest in the corpus of the aforementioned testamentary trust [trust No. 2], such interests to be computed as of the date of decedent's death.

Also on the same day Katrina and Marie entered into a written agreement. Katrina assigned to Marie her income interest in trust No. 2. The widow in turn transferred her dower interest in trust No. 2 to the same trustee, to be held in separate trust, hereinafter referred to as trust No. 3. The income from trust No. 3 was to be paid to the daughter during the life of the surviving spouse. Upon her death, the principal and accumulated income were to be paid to the daughter or if she was then dead to her issue per stirpes. This concurrent reassignment of the claimed dower interest put the parties back in the exact positions they occupied prior to the election insofar as their respective interests in the decedent's trust estate were concerned.

The First National Bank in Palm Beach, Fla., had been appointed by the decedent's will as trustee of trust No. 2. On October 17, 1966, the bank filed a petition for instructions in the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County, in chancery, to determine the effectiveness of Marie Ahlstrom's election to take dower, and to obtain court sanction and orders to proceed to recognize the agreement made by Marie and Katrina.

On April 24, 1967, that court entered its findings of fact, opinion, order, and instructions pursuant to the bank's petition. The court held that no timely dower election was possible because the initial inaccurate inventories prevented an ascertainment of the value of the dower interest, and that where legal procedures prevent accurate ascertainment of dower an extension of the period for electing dower is justified. Although the 9-month period fixed by statute generally began with the first publication of the notice to creditors, the court concluded that, under the particular facts before it, the period should begin at the time the corpus of trust No. 1 was distributed in May 1966. The court found that the administratrix first discovered that decedent's interest in the corpus of the White Trust was to be treated as an asset of the estate for tax purposes when she executed the estate tax return on November 27, 1963. It was then concluded that Marie A. Ahlstrom's election and petition to the County Judge's Court for dower were timely, and that the decedent's interest in the corpus of trust No. 1 was an asset of the estate and subject to a proper dower election. The validity of the late dower election was recognized under the facts of record there, which are not disclosed by the evidence before us and indeed are in direct conflict with some of the evidence of record herein. The court set forth and applied the Florida statutes as amended in 1965 in its opinion.

The estate tax return, executed by petitioner on November 27, 1963, stated that the surviving spouse had a right to claim dower against the will but was electing to take under the will and was not contemplating renouncing the will in favor of dower. No marital deduction was claimed for dower or bequests to the surviving spouse. The general power of appointment held by decedent was reported and valued at $ 323,748.40, and the accrued income from the trust was valued at $ 618.33. As previously noted, Katrina, as administratrix, had already recognized in the preliminary estate tax notice, filed a year previously, that the decedent's general power of appointment in trust No. 1 was an asset of her father's estate worth approximately $ 300,000.

In his statutory notice of deficiency issued on August 19, 1966, respondent determined increased values for certain assets and decreased allowances for certain deductions. He allowed a marital deduction of $ 7,385.74 for the net value of property passing to the surviving spouse, consisting of jointly held property reported in the return at a value of $ 9,475, reduced by estate tax payable from same. The petition assigned error to respondent's determined marital deduction, and alleged instead that the surviving spouse's election of dower entitled the estate to a marital deduction of $ 115,736.50. In his answer, respondent denied that petitioner was entitled to the increased marital deduction. This is the remaining issue for decision.

OPINION

Section 2056 of the Internal Revenue Code of 1954² permits a deduction from the gross estate commonly known as the marital deduction. Section 2056(a) provides that the deduction shall be an amount equal to the value of property which "passes or has passed" from the decedent to his surviving spouse. The "passing" requirement is defined by example in section 2056(e). In order to meet the statutory requirement and thus qualify property as a marital deduction, the interest in property must fall within one of the enumerated categories.

Petitioner contends that the estate should receive a larger marital deduction than determined by respondent because one-third of the corpus of trust No. 1 passed to the surviving spouse pursuant to her dower election. Respondent, on the other hand, argues that it did not and that an untimely dower election is without significance for Federal tax purposes. He concludes that no portion of the corpus of trust No. 1 passed to the surviving spouse within the meaning of section 2056(e).

Florida Statutes, hereinafter set forth, provide that a widow who is not satisfied with her husband's will may elect dower instead within 9 months after publication of the first notice to creditors. The County Judge's Court permitted the widow to exercise her dower election even though the 9-month period for the election had long since elapsed. The Circuit Court approved the election in subsequent proceedings and instructed the trustee of trust No. 2 to fund trust No. 3, previously created by Marie as outlined, with assets of the testamentary trust.

The Commissioner argues that the grant of dower was not in accordance with Florida law, and therefore not binding upon this Court, citing Commissioner v. Estate of Bosch, 387 U.S. 456">387 U.S. 456 (1967). Since whatever Marie received, if anything, cannot properly be labeled dower, he reasons that no interest "passed" to the surviving spouse which can qualify the estate for the larger marital deduction.

If we were bound to accept the label of dower which the interested parties and the Florida court placed upon the interest allegedly received by the surviving spouse as binding upon our adjudication, we might be compelled to hold that the interest that Marie elected was dower which passed to the surviving spouse. Petitioner urges that we recognize the Florida probate and Circuit Court orders as valid and as determining the Florida law. She argues that even if what Marie obtained from the estate was not dower it was property that passed to the surviving spouse so as to qualify for the marital deduction.

In Commissioner v. Estate of Bosch, supra, the Supreme Court, after explaining the reasons for granting certiorari, began its opinion with the following statement:

We hold that where the federal estate tax liability turns upon the character of a property interest held and transferred by the decedent under state law, federal authorities are not bound by the determination made of such property interest by a state trial court.

Bosch also stands for the principle that the marital deduction statute should be strictly construed and applied. The Court said:

We find that the report of the Senate Finance Committee recommending enactment of the marital deduction used very guarded language in referring to the very question involved here. It said that "proper regard," not finality, "should be given to interpretations of the will" by state courts and then only when entered by a court "in a bona fide adversary proceeding." S. Rep. No. 1013, Pt. 2, 80th Cong., 2d Sess., 4. We cannot say that the authors of this directive intended that the decrees of state trial courts were to be conclusive and binding on the computation of the federal estate tax as levied by the Congress. If the Congress had intended state trial court determinations to have that effect on the federal actions, it certainly would have said so -- which it did not do. On the contrary, we believe it intended the marital deduction to be strictly construed and applied. Not only did it indicate that only "proper regard" was to be accorded state decrees but it placed specific limitations on the allowance of the deduction as set out in § 2056(b), (c), and (d). These restrictive limitations clearly indicate the great care that Congress exercised in the drawing of the Act and indicate also a definite concern with the elimination of loopholes and escape hatches that might jeopardize the federal revenue.

Here we have two orders of State trial courts but no opinion from Florida's highest court to follow. We have therefore, as suggested by Bosch, embarked upon an independent investigation of State law, so as to be able to follow the existing Florida Supreme Court interpretation, if there is one, and if not, to make our own interpretation of the applicable Florida law. Estate of Frank Pangas, 52 T.C. 99">52 T.C. 99 (1969); Schmidt v. United States, 279 F. Supp. 811">279 F. Supp. 811 (D. Kans. 1968); Underwood v. United States, 270 F. Supp. 389">270 F. Supp. 389 (E.D. Tenn. 1967), revd. 407 F. 2d 608 (C.A. 6, 1969).

Section 731.34 of the Florida Statutes Annotated³ provides for a right in the widow to elect dower rather than take under the will. Section 731.35 of the Florida Statutes Annotated⁴ requires, however, that the election must be exercised within 9 months after the first publication of the notice to creditors. In the present case, the first notice to creditors was published on October 3, 1962, but the dower election was not executed until June 20, 1966, or filed until July 8, 1966. There is no evidence before us to the effect that the county judge extended the time in which creditors might file claims or that litigation occurred involving admission of Ahlstrom's will to probate or its validity or construction so as to extend the time for the widow's election under section 731.35(2) of the Florida Statutes Annotated. It appears from the evidence before us that under these clear statutory provisions no valid election to take dower was made, and that therefore no dower interest passed to Marie in 1966 unless we are bound to follow the Florida trial court decrees or the Florida case law dictates a contrary result.

Under purely equitable doctrines, if unmodified by statute, there is no limit in point of time to a right to elect dower, unless injury to third persons would result from the delay. In many States, however, including Florida, such purely equitable doctrines have been modified by statutes which prescribe certain periods of time within which the right of election to take dower, or an award in lieu thereof, rather than under the will, must be exercised. In general, courts have refused to honor an election filed after the statutory period has expired, and if an election to take dower is not timely filed, the widow is conclusively presumed to have elected to take under the will, no matter how harsh the result might be.

Although dower existed at common law, it has been created by statute in Florida so that the widow may elect to take a fee simple interest in one-third of all real property owned during coverture, and one-third of all personal property owned at death. Fla. Stat. Ann. sec. 731.34. The widow must exercise her election to take dower within 9 months after the first publication of the notice to creditors. Fla. Stat. Ann. sec. 731.35(1). The statute in force when William John Ahlstrom died provided for an extension of 60 days should certain specified events occur; however, since none of the events specifically set forth in the statute is present in this case, no such extension took place. Fla. Stat. Ann. sec. 731.35(2).

The right referred to in Florida as dower and the manner of taking it spring wholly from the statutory law. Hill v. Morris, 85 So. 2d 847">85 So. 2d 847 (Fla. 1956). Because the interest is dependent for its origin upon statute and not common law, dower cannot come into being unless the widow complies with the statute. In re Aron's Estate, 118 So. 2d 546">118 So. 2d 546 (Fla. App. 1960). Where the widow fails to comply with the statute her right to dower is barred, and she cannot thereafter assert that right. In re Rogers' Estate, 171 So. 2d 428">171 So. 2d 428 (Fla. App. 1965); In re Aron's Estate, supra.The Supreme Court of Florida held in Exchange National Bank of Winter Haven v. Smith, 148 Fla. 473">148 Fla. 473, 4 So. 2d 675">4 So. 2d 675 (1941), that when a widow remains inactive during the statutory period for election of dower, she has in effect bound herself to take under the will.

The facts in Williams v. Williams, 114 Fla. 733">114 Fla. 733, 154 So. 835">154 So. 835 (1935), bear noticeable resemblance to those in the present case. There the widow failed to elect dower because she had not been apprised by her attorney that a dower election would be to her economic advantage. She further alleged that her attorney had intentionally deprived her of sufficient knowledge to make an intelligent election because he was involved in a conspiracy to defraud her. The Supreme Court of Florida refused to recognize her untimely election to take dower, holding that a failure to elect dower within the statutory period specified resulted in an election to take under the will. Once made, the court held that it could not be abandoned. The court refused to give effect to the widow's allegation of fraud, but noted that she could sue her attorney in tort if she desired to do so.

Petitioner contends that even if the Florida Statutes would prevent the court from recognizing the efficacy of the dower election under normal circumstances, the set of events presently under our glass merits an exception to the statute based upon constructive fraud. The widow relied heavily upon her daughter, the petitioner herein, for counsel and advice and was not advised within the 9-month period that a dower election would abound to her economic advantage; thus, petitioner argues, she was the victim of a constructive fraud, which should permit us to ignore the statutory period of limitations. Although the above contention is emotionally appealing, if we were to accept the alleged facts as established, we find it neither convincing nor compelling. Even if we somehow were able to discover the existence of constructive fraud, the Supreme Court of Florida in Williams v. Williams, supra, refused to permit an exception to the period during which dower must be elected in the face of a similar allegation. We do not pass upon the merits of any action Marie might have had against Katrina for fraud. On all of the facts in this record we conclude that the Florida Supreme Court would uphold a ruling that Marie's election was untimely and that having elected to take under decedent's will, and having taken the other actions disclosed, Marie was barred from dower under Florida law on July 8, 1966.

We have given due regard to the Florida trial court orders and in applying the State law as Bosch teaches have carefully considered the nature of the proceedings out of which those decrees arose. An analysis of the entire situation and the nature of the lower court litigation and all transactions is pertinent to ascertain what the Florida law would be here. It is clear that by plan and prearrangement Marie and Katrina reshuffled their respective interests so that simultaneously with Marie's belated election of dower, unopposed by Katrina either individually or as administratrix of the estate, they were right back where they started from with respect to what each one would receive from the decedent's estate. They entered into a written contract on July 8, 1966, to this effect and at the same time executed various other documents to accomplish it. This was on the very day that Marie filed her election of dower which was granted by the Probate Court. By Marie's execution of a new trust agreement, with the same bank as trustee, Katrina was given the income from one-third of the decedent's interest in trust No. 1, the White Trust, during Marie's lifetime; Marie in turn was assigned Katrina's income interest in the two-thirds of that trust corpus now reposing in trust No. 2, the testamentary trust, for her lifetime. The remainder interests were unchanged; upon Marie's death the corpus in both trusts passed to Katrina outright, or to her issue, including adopted children, if she predeceased Marie. All terms of the original testamentary trust which Marie allegedly rejected in order to elect dower were thus immediately and simultaneously recreated and effected.

In substance and in result the situation was maintained just as if no election of dower had ever been made. This was obviously by prearrangement and agreement of mother and daughter for the sole purpose of creating the marital deduction which is the subject matter of this litigation. The transaction took the label and form of an election of dower and renunciation of decedent's will, but it obviously was without reality or substance, an interfamily transaction entered into for no other motive but to escape estate taxes. We conclude that it was a simulated transaction dubbed the election of dower but lacking any reality aside from the form in which it was cast. It did nothing to give Marie a greater or increased share in her husband's estate or to undo the alleged "constructive fraud" of Katrina. This did not appear to be known to the Probate Court or within the consideration of the Circuit Court which spoke only in terms of equitable adjustment and of giving Marie an increased share of her husband's estate.

We are convinced that the Florida Supreme Court, viewing all of these facts and circumstances would not uphold the election and award of dower because of "constructive fraud" practiced by Katrina upon Marie. The alleged fraud practiced by daughter upon mother was obviously more imaginary than real, and we do not believe the Florida Supreme Court would uphold the lower court orders if the litigation had been adversary and taken up on appeal. Furthermore, in the trustee's petition for instruction proceedings the Circuit Court applied the 1965 amendment to section 731.35(2), Fla. Stat. Ann., which is clearly improper under the law of Florida, as announced in In re Rogers' Estate, supra.It also ignored completely the fact that the decedent's interest in trust No. 1 had been included in the final amended inventory of estate assets in February of 1964 and that Marie admittedly knew of her right to claim dower therein at least as early as June of 1965. She waited for more than 1 year thereafter to assert her dower claim.

In the light of all of these facts and considerations and based upon our examination of the Florida authorities and particularly on the opinions in In re Rogers' Estate, supra, and Williams v. Williams, supra, interpreting sections 731.35(1) and 731.35(2), Fla. Stat. Ann., and applying their terms, it appears that Marie Ahlstrom, decedent's widow, elected to take under decedent's will. She was clearly precluded from subsequently electing dower both when she executed the election on June 20, 1966, and when she filed that election on July 8, 1966, long after July 3, 1963, the date on which the 9-month period specified by section 731.35(1), Fla. Stat. Ann., ended. Applying the Florida law as we have determined it in accordance with the doctrine of Commissioner v. Estate of Bosch, supra, we conclude and hold that the Probate Court order awarding Marie Ahlstrom dower in July of 1966 and the subsequent Circuit Court opinion approving that award and instructing the trustee were contrary to the Florida law and in no way binding upon respondent or upon us in determining the Federal estate tax liability of petitioner. Having made our own analysis, interpretation, and determination of the Florida law, we conclude that respondent correctly refused to allow the purported dower claimed as a marital deduction. Schmidt v. United States, supra.

We have carefully considered petitioner's other argument that if dower is not recognized we must nonetheless allow a marital deduction for whatever it was that was awarded to Marie by the Florida courts. We reject this argument as well. Sec. 2056(e).

We hold that petitioner has failed to prove that the widow received an interest in property which passed from the decedent to the surviving spouse as required by section 2056, I.R.C. 1954, greater than respondent has allowed. The estate does not qualify for any additional marital deduction and respondent's determination is sustained. To reflect any required or necessary adjustments,

Decision will be entered under Rule 50.

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Footnotes

• 1. Although the parties have stipulated that Marie Ahlstrom filed her election to take dower on June 20, 1966, it is apparent that this is incorrect and that while the election was executed by the widow on June 20, 1966, it was not filed in the County Judge's Court until July 8, 1966, as indicated by the court's official filing stamp on the face thereof, reflecting the filing date as July 8, 1966.↩

• 2. SEC. 2056. BEQUESTS, ETC., TO SURVIVING SPOUSE.

  (a) Allowance of Marital Deduction. -- For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsections (b),(c), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.

  * * * *

  (e) Definition. -- For purposes of this section, an interest in property shall be considered as passing from the decedent to any person if and only if --

  (1) such interest is bequeathed or devised to such person by the decedent;

  (2) such interest is inherited by such person from the decedent;

  (3) such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent;

  (4) such interest has been transferred to such person by the decedent at any time;

  (5) such interest was, at the time of the decedent's death, held by such person and the decedent (or by them and any other person) in joint ownership with right of survivorship;

  (6) the decedent had a power (either alone or in conjunction with any person) to appoint such interest and if he appoints or has appointed such interest to such person, or if such person takes such interest in default on the release or nonexercise of such power; or

  (7) such interest consists of proceeds of insurance on the life of the decedent receivable by such person.↩

• 3. 731.34 Dower in realty and personalty

  Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death, * * *↩

• 4. 731.35 Election to take dower

  (1) In order to take dower, a widow must so elect by an instrument in writing, signed by her and acknowledged or sworn to by her before any officer authorized to take acknowledgments or to administer oaths, and filed, within nine months after the first publication of the notice to creditors, in the office of the county judge in whose court the estate of the deceased husband is being administered. The county judge shall record all elections to take dower.

  (2) Should the county judge extend the time in which creditors may file their claims, or should litigation occur involving the admission of the will to probate, or its validity or the construction thereof, or should any claim filed be contested, a widow shall have sixty days from the date to which such extension for filing claims is extended or from the date of a final judgment determining any litigation or contested claim or from the time allowed to the personal representative for filing his objection to any claim, in which to elect to take dower. [This section was amended, Fla. Laws 1965, ch. 65-542, sec. 1, effective Aug. 3, 1965. This amendment is not effective or applicable here. In re Rogers Estate, 171 So. 2d 428">171 So. 2d 428↩ (Fla. App., 1965).]