Florida Elective Share: Protecting a Surviving Spouse from Disinheritance
One of the most misunderstood areas of Florida estate planning is the elective share. Many people assume that a spouse can be completely disinherited through a will or trust. Under Florida law, however, that is usually not possible.
Florida has strong protections for surviving spouses. Even if a will or trust attempts to leave a spouse little or nothing, the spouse may still have the legal right to claim a portion of the estate through the elective share.
Understanding how the elective share works can help families avoid disputes and ensure that estate plans reflect their true intentions.
What Is the Florida Elective Share?
The elective share is a statutory right that allows a surviving spouse to claim 30% of the deceased spouse’s elective estate, regardless of what the will or trust says.
The purpose of this law is to prevent a spouse from being completely disinherited and left without financial support.
Florida’s elective share is governed primarily by Florida Statutes §§ 732.201–732.2155.
If a surviving spouse exercises this right, the estate must ensure that the spouse receives 30% of the total elective estate.
What Is Included in the Elective Estate?
One important feature of Florida’s law is that the elective share is not limited to assets that pass through probate.
Instead, the elective share is calculated based on the elective estate, which includes many types of assets, such as:
Probate assets
Revocable living trusts
Joint accounts
Payable-on-death accounts
Certain life insurance proceeds
Retirement accounts
Property transferred shortly before death
Some assets held in tenancy by the entirety
Because Florida includes many non-probate assets, it is often very difficult to avoid the elective share simply by moving assets into a trust or using beneficiary designations.
How the Elective Share Is Calculated
The calculation generally follows three steps:
Determine the value of the elective estate.
Calculate 30% of that value.
Subtract assets already passing to the surviving spouse.
If the spouse already receives assets equal to or greater than 30% of the elective estate, then no additional payment is required.
If the spouse receives less than that amount, the estate must make up the difference.
When Must a Surviving Spouse Elect?
The elective share is not automatic.
A surviving spouse must affirmatively claim it.
Under Florida Statute § 732.2135, the election must generally be filed:
Within 6 months after service of the Notice of Administration, or
Within 2 years after the decedent’s death, whichever occurs first.
If the spouse fails to file the election within the required time period, the right is usually lost.
Can a Spouse Waive the Elective Share?
Yes. A spouse can waive the elective share through a valid prenuptial or postnuptial agreement.
Many couples with second marriages or blended families choose to sign agreements that waive elective share rights so that each spouse can leave property to children from prior relationships.
These waivers must meet specific legal requirements to be enforceable.
How the Elective Share Affects Estate Planning
Because the elective share includes revocable trusts and many non-probate assets, it significantly impacts how estate plans are structured.
Without careful planning, a surviving spouse may be able to claim a substantial portion of assets that the decedent intended to pass to children or other beneficiaries.
Common strategies used to address elective share concerns include:
Prenuptial or postnuptial agreements
Qualified terminable interest property (QTIP) trusts
Properly structured marital trusts
Coordinating beneficiary designations
Careful asset titling
Estate planning should be designed to work with Florida’s spousal protections rather than unintentionally conflict with them.
Elective Share vs. Other Spousal Rights
The elective share is only one of several rights a surviving spouse may have under Florida law.
A surviving spouse may also be entitled to:
Homestead rights
Family allowance
Exempt property
Pretermitted spouse protections
Because these rights can overlap, determining the surviving spouse’s total entitlement often requires a careful legal analysis.
When Should You Speak with an Estate Planning Attorney?
Elective share issues frequently arise in situations involving:
Second marriages
Blended families
Significant wealth
Unequal asset ownership between spouses
Estate plans created in another state
If an estate plan does not properly account for Florida’s elective share rules, it can lead to costly probate litigation and family disputes.
Working with an experienced estate planning attorney can help ensure that your estate plan accomplishes your goals while complying with Florida law.
Need Help with Florida Estate Planning?
Proper estate planning helps ensure that your wishes are honored while protecting your loved ones.
If you would like assistance creating or updating your estate plan, the Burns Law Firm can help.