Florida Elective Share - Surviving Spouse Rights

Under Florida law, a surviving spouse cannot be completely disinherited. Even if a will leaves nothing to the surviving spouse, Florida Statutes sections 732.201 through 732.2155 provide the surviving spouse with the right to claim an elective share equal to 30% of the elective estate. This protection exists to prevent one spouse from leaving the other destitute and is one of the most important rights available to a surviving spouse in Florida probate.

What Is the Elective Share?

The elective share is a statutory right that allows a surviving spouse to elect to receive 30% of the decedent's elective estate, regardless of what the decedent's will provides. If the decedent left the surviving spouse less than 30% of the elective estate -- or nothing at all -- the surviving spouse can file an election to claim the difference. This right exists independently of any provision in the will and cannot be defeated simply by leaving assets to other beneficiaries.

The elective share serves as a floor, not a ceiling. If the will or other estate plan provides the surviving spouse with more than 30% of the elective estate, the spouse keeps what they were given. The election only comes into play when the spouse would otherwise receive less than the statutory 30%.

The Elective Estate: Broader Than the Probate Estate

One of the most important aspects of the elective share is that it is calculated against the elective estate, not the probate estate. The elective estate is significantly broader and includes assets that pass outside of probate. Under F.S. § 732.2035, the elective estate includes:

The decedent's probate estate
Assets held in revocable trusts or trusts over which the decedent held a general power of appointment
The decedent's fractional interest in assets held as tenants in common
The decedent's share of assets held in joint accounts with rights of survivorship (to the extent of the decedent's contribution)
The value of property transferred by the decedent during marriage where the decedent retained the right to possession or income
Net cash surrender value of life insurance policies owned by the decedent
The value of amounts payable to or for the benefit of any person by reason of the decedent's death under any pension, profit-sharing, or deferred compensation plan
Property transferred during the one-year period preceding death that exceeds the federal gift tax annual exclusion

This broad definition prevents a spouse from sheltering assets in revocable trusts or joint accounts to avoid the elective share. Prior to the 1999 revision of Florida's elective share statute, the elective share applied only to the probate estate, which allowed decedents to effectively disinherit a spouse by transferring assets into revocable trusts or joint accounts before death.

Florida's current approach to the elective estate is modeled on the Uniform Probate Code and is designed to capture the decedent's true wealth at the time of death. The breadth of the elective estate means that virtually all assets the decedent controlled or benefited from during the marriage will be included in the calculation, regardless of the legal form of ownership.

How the Elective Share Is Calculated

The calculation of the elective share involves several steps. First, the total value of the elective estate is determined by adding up all of the categories listed in F.S. § 732.2035. Each category of assets is valued as of the decedent's date of death. Liabilities, enforceable claims, and administration expenses attributable to specific assets are deducted from the value of those assets before the total elective estate is calculated.

Once the total elective estate value is established, the 30% figure is applied to arrive at the elective share amount. From that amount, the court subtracts the value of property already passing to the surviving spouse from all sources, including both probate and non-probate transfers.

For example, if the decedent's elective estate totals $2,000,000, the surviving spouse's elective share would be $600,000. If the surviving spouse has already received $200,000 through joint accounts, life insurance, or distributions under the will, the remaining $400,000 would need to be satisfied from other assets in the elective estate.

It is important to note that the valuation of certain assets -- such as life estates, annuities, and other temporal interests -- may require actuarial calculations. The personal representative or the court may need to retain experts to determine the present value of these interests for purposes of the elective share computation.

Property Counted Toward Satisfaction

Under F.S. § 732.2075, certain property that the surviving spouse has already received or is entitled to receive is counted toward satisfying the elective share. These amounts reduce the elective share dollar-for-dollar and include:

Outright or beneficial interests in assets included in the elective estate that pass or have passed to the surviving spouse
Assets received by the surviving spouse from the decedent by reason of the decedent's death under any trust, insurance policy, joint account, or retirement plan
Protected homestead property, if the surviving spouse takes an interest in it
The value of the surviving spouse's interest in the family allowance and exempt property under F.S. §§ 732.401-732.403

Only after these amounts are credited does the court determine whether the surviving spouse is entitled to additional assets. The goal is to ensure the spouse receives the full 30% without creating a windfall beyond that amount.

How to Make the Election

The surviving spouse -- or a guardian or attorney-in-fact authorized to act on the spouse's behalf -- must file the election with the circuit court in the county where the probate proceeding is pending. The election must be made by filing a written notice with the court and serving copies on the personal representative and all interested parties.

The election is an affirmative step. If the surviving spouse does not file, they are deemed to have accepted whatever the will provides. Once filed, however, the election is generally irrevocable unless the court permits withdrawal for good cause.

The petition to make the election must identify the surviving spouse, reference the pending probate proceeding, and state the spouse's intent to take the elective share. Proper service on all affected parties is essential because the election may require contributions from trust beneficiaries, joint account holders, and other recipients of non-probate transfers who are not otherwise parties to the probate case.

Deadline for Filing the Election

Timing is critical. Under F.S. § 732.2135, the surviving spouse must file the election on or before the earlier of:

Six months after the date of service of a copy of the notice of administration on the surviving spouse, or
Two years after the date of the decedent's death

If the surviving spouse fails to file within these deadlines, the right to the elective share is permanently waived. Courts have consistently enforced these deadlines, and extensions are rarely granted.

Because of the strict time limits, it is essential to consult with an estate litigation attorney as soon as possible after a spouse's death if there is any question about whether the elective share should be pursued. Delay can result in the permanent loss of this important statutory right.

Waiver of the Elective Share

The right to an elective share can be waived. Under F.S. § 732.702, a surviving spouse may waive the elective share through a valid prenuptial agreement or postnuptial agreement. For the waiver to be enforceable, the following conditions must typically be met:

The waiver must be in writing and signed by the waiving party in the presence of two subscribing witnesses
There must have been fair disclosure of the other spouse's assets, or the waiving spouse must have voluntarily and independently signed the waiver with full knowledge (or adequate knowledge) of the other spouse's assets
The waiver must have been executed voluntarily, without fraud, duress, coercion, or overreaching

Waivers are frequently contested in will contests and estate litigation. Courts will scrutinize whether the waiver was truly voluntary and whether there was adequate financial disclosure. A poorly drafted prenuptial or postnuptial agreement may not effectively waive the elective share, leaving the surviving spouse free to claim it.

It is also possible for a spouse to waive the elective share by a written contract, agreement, or waiver signed by the waiving party after fair disclosure. A general waiver of "all rights" in the property or estate of the other spouse is sufficient to waive the elective share, homestead rights, exempt property rights, family allowance, and preference in appointment as personal representative of the estate.

Interaction With Homestead Rights

The elective share and Florida homestead protection are separate but related rights. Under Article X, Section 4 of the Florida Constitution, a surviving spouse has independent rights to the homestead property, including the right to a life estate or an undivided one-half interest as a tenant in common. These homestead rights exist regardless of the elective share.

However, the value of the surviving spouse's interest in homestead property may be counted toward satisfaction of the elective share under F.S. § 732.2075. This means that a surviving spouse who receives the homestead may find that its value reduces the additional amount payable under the elective share. Conversely, a surviving spouse who waives homestead rights may be entitled to a larger distribution from other estate assets to satisfy the 30% elective share.

Because the interaction between homestead and elective share can significantly affect the overall distribution of the estate, both rights should be analyzed together as part of a comprehensive estate plan.

Elective Share and Intestate Succession

The elective share is most commonly relevant when a will leaves the surviving spouse less than 30% of the elective estate. However, in cases of intestate succession -- where the decedent died without a will -- the surviving spouse's intestate share may already equal or exceed 30% of the estate. Under Florida's intestacy statute, if the decedent is survived by a spouse and no descendants, the surviving spouse receives the entire intestate estate. If the decedent is survived by a spouse and descendants, the surviving spouse receives either the first $60,000 plus half the balance, or half the estate, depending on whether the descendants are also descendants of the surviving spouse.

In many intestacy cases, the elective share election may not be necessary because the intestate share exceeds the 30% elective share. But when the intestate estate includes significant assets passing outside of probate to other beneficiaries -- such as trust assets or joint accounts held with non-spouse parties -- the elective share calculation against the broader elective estate may still result in a higher entitlement for the surviving spouse.

Who Can Make the Election?

Typically, only the surviving spouse can make the election. However, Florida law allows the election to be made on behalf of an incapacitated surviving spouse by a court-appointed guardian of the spouse's property, or by an agent acting under a durable power of attorney if the power of attorney expressly grants authority to make the election. The court must approve the election when it is made by a guardian.

If the surviving spouse dies before filing the election, the right to elect is generally extinguished. The elective share is a personal right of the surviving spouse and does not pass to the surviving spouse's estate or heirs. This makes prompt action especially important when the surviving spouse is elderly or in poor health.

Contribution From Beneficiaries

When the elective share is not fully satisfied by property already passing to the surviving spouse, the remaining amount must come from other beneficiaries and recipients of the elective estate. Under F.S. § 732.2095, each recipient of the elective estate is required to contribute a proportionate share to satisfy the elective share amount. This means that beneficiaries under the will, trust beneficiaries, and recipients of joint accounts or other non-probate transfers may all be required to return a portion of what they received.

The contribution is calculated pro rata based on the value each recipient received relative to the total elective estate. Recipients who received larger shares contribute proportionally more. If any recipient is unable to contribute their full share -- for example, because the assets have been spent or are otherwise unavailable -- the remaining recipients must make up the shortfall.

This contribution mechanism ensures that the burden of satisfying the elective share is spread equitably among all recipients rather than falling on a single beneficiary. Disputes over contributions are common and may require court intervention to resolve.

Practical Considerations

The decision to file an elective share election involves careful analysis. Factors to consider include:

The total value of the elective estate and the 30% calculation
What the surviving spouse has already received or will receive from all sources
Whether the surviving spouse's homestead interest reduces the elective share entitlement
Whether a valid prenuptial or postnuptial waiver exists
The cost and complexity of pursuing the election, including potential litigation with other beneficiaries
Tax implications of the election, including potential estate tax and income tax consequences

In some cases, the surviving spouse may be better off accepting the provisions of the will rather than electing the statutory share. For instance, if the will creates a trust that provides income for life with favorable tax treatment, the net benefit may exceed the 30% outright distribution.

In other cases, particularly where the will leaves the surviving spouse little or nothing, the elective share may provide a critical source of financial security. An experienced attorney can model both scenarios and advise the surviving spouse on the most advantageous course of action.

Estate Planning to Address the Elective Share

For married individuals engaged in estate planning, the elective share should be a central consideration. Simply placing assets in a revocable trust will not defeat the elective share, because trust assets are included in the elective estate. Strategies to address the elective share during the planning process include:

Ensuring the estate plan provides the surviving spouse with at least 30% of the elective estate to avoid the need for an election
Obtaining a valid prenuptial or postnuptial waiver where appropriate, with full financial disclosure and independent legal counsel for both parties
Structuring the estate plan so that assets passing to the surviving spouse qualify for both the elective share credit and the federal estate tax marital deduction
Coordinating beneficiary designations on retirement accounts and life insurance with the overall estate plan to ensure the elective share is satisfied efficiently

Contact a Florida Elective Share Attorney

If you are a surviving spouse who believes you may be entitled to an elective share, or if you are a personal representative or beneficiary facing an elective share claim, it is important to seek experienced legal counsel. The attorneys at the Law Offices of Albert Goodwin, PA represent clients in elective share elections, estate litigation, and all aspects of Florida probate and estate planning.

Phone: 786-522-1411
Email: [email protected]
Office: 121 Alhambra Plz #1000, Coral Gables, FL 33134