Florida's Elective Share: How the 30% of the Elective Estate Is Calculated Under Fla. Stat. 732.2065

Florida law does not allow a married person to completely disinherit a surviving spouse. Under Fla. Stat. § 732.201, a surviving spouse of a decedent who was domiciled in Florida may elect to receive an elective share of the decedent's estate, and Fla. Stat. § 732.2065 fixes that share at a precise figure: 30 percent of the elective estate. That single sentence sounds simple. In practice, the calculation is one of the most technical exercises in Florida probate, because the "elective estate" is not the same thing as the probate estate. It is an expanded, statutorily defined pool of assets that reaches revocable trusts, pay-on-death accounts, jointly titled property, retirement accounts, certain life insurance values, and even some transfers the decedent made shortly before death.

For surviving spouses in Miami — where estates frequently combine homestead real property, closely held businesses, offshore and multi-state accounts, and trust-held assets — understanding exactly how the 30 percent is computed often determines whether an election is worth hundreds of thousands of dollars or nothing at all. This page walks through the statute step by step, with worked examples, deadlines, and the procedure for making the election in Miami-Dade County probate proceedings. For a broader overview of the right itself, see our page on the elective share.

The Statutory Framework: Part II of Chapter 732

The elective share is governed by Part II of Chapter 732 of the Florida Statutes, specifically §§ 732.201 through 732.2155. The key provisions are:

• § 732.201 — establishes the surviving spouse's right of election;
• § 732.2035 — defines which assets enter the elective estate;
• § 732.2045 — lists assets excluded from the elective estate;
• § 732.2055 — sets the valuation dates for included assets;
• § 732.2065 — fixes the elective share at 30% of the elective estate;
• § 732.2075 — establishes the order in which assets are used to satisfy the share;
• § 732.2095 — governs how interests passing to the spouse are valued against the share;
• § 732.2125 and § 732.2135 — govern who may make the election and the strict deadlines for doing so.

Each step of the calculation flows through these sections in order: build the elective estate, subtract permitted deductions, take 30 percent, then determine how — and from whom — that amount is satisfied.

Step One: What Goes Into the Elective Estate Under § 732.2035

Florida adopted an "augmented estate" model precisely to prevent a spouse from being disinherited through non-probate transfers. Section 732.2035 sweeps the following categories into the elective estate:

• The probate estate — all property subject to administration in Florida, wherever located (§ 732.2035(1)).
• Protected homestead — the decedent's Florida homestead is included at fair market value, even though it passes outside the will (§ 732.2035(2)).
• Pay-on-death and Totten trust accounts — accounts and securities registered POD, TOD, or in trust for another (§ 732.2035(3)).
• Jointly held property — the decedent's ownership interest in property held jointly with right of survivorship or as tenants by the entirety. For property held with the surviving spouse as tenants by the entirety, one-half is included (§ 732.2035(4)).
• Revocable transfers — most importantly, assets held in the decedent's revocable living trust, plus any other property the decedent could revoke or revert to himself or herself (§ 732.2035(5)).
• Certain irrevocable transfers with retained rights — irrevocable transfers where the decedent retained income, possession, or enjoyment (§ 732.2035(6)).
• Life insurance cash value — the net cash surrender value of policies on the decedent's life immediately before death. Critically, the death benefit itself is not included; only the cash value counts (§ 732.2035(7)).
• Pension and retirement benefits — amounts payable by reason of the decedent's death under qualified plans, IRAs, and similar arrangements (§ 732.2035(8)).
• Transfers within one year of death — property transferred within the year before death, including terminations of rights and gifts exceeding the federal annual gift tax exclusion amount (§ 732.2035(9)).
• Property used to satisfy the elective share itself (§ 732.2035(10)).

What Is Excluded Under § 732.2045

Section 732.2045 carves out important exclusions, including: irrevocable transfers completed before October 1, 1999, or before the marriage; transfers made with the surviving spouse's written consent (including valid prenuptial and postnuptial waivers under § 732.702); the proceeds of life insurance beyond net cash surrender value; the decedent's one-half of community property; and property held in certain qualifying special needs trusts. In Miami, where many couples sign prenuptial agreements and where community-property questions arise for spouses who previously lived in community-property jurisdictions abroad, these exclusions are frequently the central battleground in elective share disputes.

Step Two: Deductions Before Applying the 30%

The elective estate is not a gross number. Under § 732.2035, the value of included property is reduced by:

• Valid claims against the estate paid or payable from the elective estate — for example, the decedent's debts and funeral expenses; and
• Mortgages, liens, and security interests encumbering included property.

Note what is not deducted: estate taxes and general administration expenses do not reduce the elective estate for purposes of the 30 percent calculation. This is a common miscalculation by personal representatives, and it can understate the spouse's share significantly. Questions about which debts qualify as deductible claims often overlap with creditor and tax issues handled by our Miami estate debt and tax attorneys.

Step Three: Valuation Dates Under § 732.2055

Section 732.2055 fixes when each asset is valued, and the date matters enormously in a volatile market:

• Probate assets, homestead, trust assets, and accounts are generally valued as of the date of death;
• Irrevocable transfers within one year of death are valued as of the date of the transfer;
• Life insurance cash value is measured immediately before death.

Because Miami estates frequently include condominiums, commercial real estate, and privately held business interests without a ready market price, valuation is often the most contested variable in the entire computation. A five percent swing in the appraised value of a Brickell condominium changes the elective share dollar for dollar at the 30 percent rate. When appraisals conflict, our estate asset valuation disputes attorneys retain and cross-examine appraisers, forensic accountants, and business valuation experts.

Step Four: Apply § 732.2065 — A Worked Example

Section 732.2065 states, in full: "The elective share is an amount equal to 30 percent of the elective estate." Here is how the full calculation works in a realistic Miami scenario.

Facts: Carlos, a Miami-Dade resident, dies survived by his wife, Maria, and two adult children from a prior marriage. His will and revocable trust leave everything to the children. His assets:

Elective estate: $400,000 + $700,000 + $600,000 + $100,000 + $50,000 − $150,000 − $100,000 = $1,600,000.

Elective share under § 732.2065: 30% × $1,600,000 = $480,000.

Notice what would have happened if Maria's counsel had looked only at the probate estate: 30% of $400,000 is $120,000 — a $360,000 error. The augmented-estate rules of § 732.2035 are where the real money is found, and identifying non-probate assets often requires formal discovery and, where transfers were concealed or improperly made, the work of a Miami estate asset recovery attorney.

Step Five: Satisfying the Share — § 732.2075 and § 732.2095

The 30 percent figure is a target amount, not a check the spouse automatically receives. Two more statutes determine what actually changes hands.

Credit for What the Spouse Already Receives

Under § 732.2075(1), property passing to the surviving spouse — by will, trust, beneficiary designation, survivorship, or intestacy — is applied first toward satisfaction of the elective share. Section 732.2095 assigns specific values to these interests:

• A spouse's life estate in the homestead (or the 50% tenancy-in-common election under § 732.401(2)) is valued at one-half of the homestead's value;
• An elective share trust counts at 80% of its value if the spouse holds a qualifying power to invade principal, and 50% if the spouse has only an income interest;
• Other property interests are valued at fair market value on the applicable date.

The Contribution Order

If assets passing to the spouse do not fully satisfy the share, § 732.2075(2) imposes a strict priority order for contribution from other beneficiaries: first, the probate estate and assets in revocable trusts contribute; second, recipients of other included non-probate property (such as POD beneficiaries and surviving joint owners) contribute pro rata. Direct recipients are personally liable for their contribution under § 732.2085, which is why children and other beneficiaries frequently retain their own counsel once an election is filed.

Continuing the example: Maria takes a life estate in the $600,000 homestead by operation of § 732.401. Under § 732.2095, that interest is valued at $300,000 against her $480,000 elective share, leaving an unsatisfied balance of $180,000. That balance is paid first from the probate estate and revocable trust assets, reducing what Carlos's children receive. If Maria instead timely elected the 50% tenancy-in-common interest in the homestead, the credit and contribution math would shift — a strategic decision that should be modeled before any election is filed.

Deadlines and Procedure: § 732.2135 and Fla. Prob. R. 5.360

The election is unforgiving on timing. Under § 732.2135(1), the election must be filed on or before the earlier of:

1. Six months after service of a copy of the notice of administration on the surviving spouse (or an attorney-in-fact or guardian of the property acting for the spouse); or
2. Two years after the decedent's date of death.

Concrete example: If the personal representative serves the notice of administration on the surviving spouse on March 1, the election must be filed by September 1 of the same year — even if the two-year anniversary of death is far off. If the spouse is never served with the notice of administration, the outside limit is two years from the date of death, period.

Additional procedural rules matter:

• Extensions: Under § 732.2135(2), the spouse may petition the court within the election period for an extension for good cause, including pending litigation over the estate's assets; the election must then be filed within 40 days after the order resolving the petition.
• Who may elect: Under § 732.2125, the election may be made by the spouse personally, by an attorney-in-fact, or by a guardian of the property — the latter two only with court approval after a finding that the election is in the spouse's best interests.
• Withdrawal: The election may be withdrawn within eight months after the decedent's death and before the court's order determining the elective share.
• Form and service: Florida Probate Rule 5.360 governs the contents of the election, service on interested persons, the personal representative's determination of the amount, and the procedure for objections and contribution orders in the circuit court — in Miami, the Probate Division of the Eleventh Judicial Circuit in Miami-Dade County.

Why the Calculation Is Rarely Simple in Miami Estates

In our experience handling elective share matters in Miami-Dade probate proceedings, disputes cluster around a handful of recurring issues: whether a prenuptial or postnuptial waiver under § 732.702 is enforceable; whether transfers to trusts or family members within the final year of life fall within § 732.2035(9); how to value closely held businesses, professional practices, and real estate portfolios; whether foreign accounts and foreign-situs assets of a Florida domiciliary enter the elective estate (they generally do — § 732.2035 reaches property "wherever located"); and whether the personal representative has fully disclosed non-probate assets. Personal representatives, for their part, must correctly compute and defend the calculation or face surcharge exposure — an area where coordination with a Miami estate administration attorney is essential.

Because the election deadline runs from service of the notice of administration, a surviving spouse should never wait for the estate inventory before seeking advice. The six-month clock is often already running by the time the spouse understands the scope of what was left outside the will.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].