Miami Elective Share Attorney

When a Florida resident dies and leaves a surviving spouse, the law does not permit that spouse to be cut out of the estate. Florida's elective share statute guarantees a surviving husband or wife the right to claim thirty percent of the decedent's "elective estate," regardless of what the will, trust, or beneficiary designations say. If you are a surviving spouse in Miami-Dade County and your late husband or wife left you less than your statutory share — or nothing at all — you may have powerful rights that must be asserted within strict deadlines. Our Miami probate litigation team represents surviving spouses in elective share proceedings, asset tracing, and contested valuation disputes throughout the Eleventh Judicial Circuit.

What Is the Florida Elective Share?

The elective share is a statutory entitlement that protects surviving spouses from being disinherited. Codified at Florida Statutes Sections 732.201 through 732.2155, the elective share gives the surviving spouse the right to receive thirty percent of the "elective estate," a defined pool of assets that includes far more than what passes through probate. The elective share applies whether the decedent died with or without a will, and it cannot be defeated by routing assets into a revocable trust, a payable-on-death account, or a joint tenancy created shortly before death.

The policy behind the elective share is straightforward: Florida considers marriage an economic partnership, and a surviving spouse should not be left destitute because the decedent attempted to direct property elsewhere. Even if a will explicitly disinherits the spouse, the surviving spouse can override that disposition by timely electing to take the statutory share.

What Assets Are Included in the Elective Estate?

One of the most contested aspects of any Miami elective share proceeding is determining what counts as part of the elective estate. Section 732.2035 sweeps in a wide range of property, including:

• The probate estate itself
• The decedent's interest in any property passing by right of survivorship, such as joint bank accounts and jointly held real estate
• Property held in a revocable trust at the time of death
• Pay-on-death, transfer-on-death, and in-trust-for accounts
• Net cash surrender value of life insurance policies owned by the decedent
• Retirement accounts, pensions, and similar deferred compensation
• Property transferred within one year of death without adequate consideration
• Property over which the decedent held a general power of appointment

Because the elective estate includes non-probate assets, surviving spouses are often surprised to learn that they may be entitled to a share of accounts and properties they never realized were on the table. Conversely, personal representatives and trustees often dispute the inclusion or valuation of these items, leading to contested hearings before the Miami-Dade Probate Court.

Who Qualifies as a Surviving Spouse?

To assert an elective share in Miami, the claimant must qualify as the decedent's surviving spouse under Florida law. This requires a valid, legally recognized marriage at the time of death. Disputes about whether someone is truly a surviving spouse arise in several scenarios:

• Marriages that were never formally dissolved, even though the parties had long separated
• Foreign marriages whose validity is challenged under Florida choice-of-law principles
• Allegations that a marriage was procured by fraud or undue influence
• Pending divorce proceedings interrupted by the death of one spouse
• Common-law marriages from other states recognized in Florida only under specific circumstances

A spouse may also lose the right to an elective share if a valid waiver was signed — typically in a prenuptial or postnuptial agreement. Whether such a waiver is enforceable depends on whether the agreement was entered voluntarily, with full financial disclosure, and complies with Section 732.702.

Deadlines for Filing an Elective Share in Miami

Florida law imposes hard deadlines on elective share claims, and missing them can permanently extinguish the surviving spouse's rights. Under Section 732.2135, the surviving spouse must file the election to take the elective share within the earlier of:

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

The election must be filed with the Miami-Dade Probate Court, served on interested persons, and accompanied by appropriate disclosures. Extensions are available in limited circumstances, but they must be sought before the deadline expires. Surviving spouses who delay frequently lose their entire statutory right — even when the amount at stake is substantial.

Calculating the Elective Share Amount

The elective share equals thirty percent of the elective estate. However, the calculation is rarely as simple as multiplying the gross value of qualifying assets by thirty percent. Florida law requires:

• Subtracting valid liabilities and claims against the estate
• Valuing assets as of the date of death, with certain exceptions for retirement accounts
• Adjusting for property already passing to the surviving spouse, which is credited against the share
• Apportioning contribution obligations among the recipients of elective estate property

Valuation disputes are common, particularly when the elective estate includes closely held businesses, real estate, or illiquid assets. Our Miami attorneys frequently retain forensic accountants, business valuation experts, and real estate appraisers to ensure that the surviving spouse receives the full statutory amount.

Sources of Payment and Contribution

Section 732.2075 governs how the elective share is funded. Property already passing to the surviving spouse — through the will, trust, joint accounts, or beneficiary designations — is credited first. Any shortfall must be contributed by the recipients of elective estate property, in proportion to the value each received. This contribution scheme often pits the surviving spouse against the decedent's children, business partners, or named trust beneficiaries, leading to multi-party litigation.

Common Disputes in Miami Elective Share Cases

Elective share litigation in Miami-Dade County typically involves one or more of the following issues:

Validity of Prenuptial or Postnuptial Waivers

Personal representatives often produce a marital agreement waiving the elective share. The surviving spouse may challenge the agreement on grounds of duress, lack of full disclosure, or unconscionability under Florida law.

Inclusion of Trust Assets

Many decedents transfer significant wealth into revocable trusts during life. While the elective estate statute reaches these trusts, trustees sometimes resist inclusion, particularly when the trust documents purport to disinherit the spouse.

Pre-Death Transfers

Transfers made within one year of death, or transfers that retained a beneficial interest, may be pulled back into the elective estate. Documenting these transfers requires aggressive discovery.

Valuation Disputes

Closely held businesses, real estate holdings, and partnership interests often generate competing appraisals. Hearings before the Probate Division frequently turn on expert testimony.

Pretermitted Spouse Claims

If the decedent married after executing the will and did not update it, the surviving spouse may also have a pretermitted spouse claim under Section 732.301, which can be pleaded alongside the elective share.

The Elective Share Trust

Florida law permits the elective share to be satisfied through an "elective share trust," a special trust structure that allows the surviving spouse to receive income and discretionary distributions while preserving principal for other beneficiaries. These trusts have specific statutory requirements, and disputes often arise over whether the trust complies with Section 732.2025. Surviving spouses should not accept an elective share trust without careful legal review, as improper trust terms can dramatically reduce the practical value of the share.

Procedural Considerations Before the Miami-Dade Probate Court

Elective share proceedings in Miami-Dade County are heard in the Probate Division of the Eleventh Judicial Circuit Court. The procedure typically involves:

1. Filing the notice of election with the Probate Court
2. Serving interested persons with the election and supporting documents
3. Filing a petition for determination of the elective share
4. Engaging in discovery to identify and value elective estate assets
5. Litigating contested valuation and inclusion issues
6. Obtaining an order determining the share and directing payment

The process can take months or years depending on the complexity of the estate and the cooperation of opposing parties. Surviving spouses should be prepared for protracted litigation when the estate is substantial or when family conflict is intense.

Strategic Considerations Before Electing

The decision to elect the statutory share is not automatic. In some cases, the surviving spouse already receives more than thirty percent of the elective estate through the will, trust, or joint accounts. In other cases, electing the share may trigger contribution obligations from the surviving spouse's own assets. Our Miami attorneys conduct a careful comparison of what the spouse already receives versus what the elective share would yield, taking into account tax consequences, liquidity, and family dynamics. Once the election is filed, it generally cannot be withdrawn without court approval.

Why Choose Our Miami Elective Share Attorneys

Elective share litigation requires deep familiarity with the interlocking provisions of Florida's probate code, trust code, and homestead laws. Our firm focuses on Florida probate and trust litigation and has extensive experience representing surviving spouses in Miami-Dade County. We coordinate with forensic accountants, business appraisers, and tax counsel to assemble the strongest possible case and to ensure that no qualifying asset escapes the elective estate calculation.

We understand the emotional weight of these proceedings, particularly when family conflict involves stepchildren, second marriages, or estranged relatives. Our approach combines firm advocacy with the sensitivity these cases demand.

Contact a Miami Elective Share Attorney

If your spouse has passed away and you believe you are entitled to more than what the will or trust provides, do not wait. The six-month deadline runs quickly, and the analysis required to maximize an elective share recovery can take weeks of investigation and asset tracing. Contact our Miami probate litigation team today to schedule a confidential consultation about your rights under Florida's elective share statute.

You can contact us by phone at 786-522-1411 or by email at [email protected].