Attorney for Elective Share Disputes

When a spouse passes away in Miami, the surviving husband or wife is granted significant statutory protections under Florida law—regardless of what the decedent's will says. One of the most important of these protections is the elective share, which entitles a surviving spouse to claim 30% of the deceased spouse's elective estate. Unfortunately, elective share rights are often the subject of intense disputes, particularly in blended families, second marriages, and estates involving substantial assets, business interests, or trusts.

If you are a surviving spouse who has been disinherited, underprovided for, or excluded from your deceased spouse's estate plan, or if you are a personal representative or beneficiary facing an elective share claim, our Miami probate litigation attorneys can help you navigate this complex area of Florida law and protect your financial interests.

What Is the Elective Share Under Florida Law?

The elective share is codified in Florida Statutes §§ 732.201–732.2155. It guarantees a surviving spouse the right to receive 30% of the decedent's elective estate, even if the deceased spouse's will or trust attempts to leave the surviving spouse nothing or only a token amount. The purpose of the statute is to prevent the disinheritance of a surviving spouse and to recognize the marital partnership that existed during the marriage.

Critically, the elective estate is not limited to assets that pass through probate. Florida's elective share statute reaches a wide range of non-probate assets, which often leads to substantial litigation over what should and should not be included in the calculation.

Assets Typically Included in the Elective Estate

• Probate assets owned solely by the decedent at death
• Pay-on-death and transfer-on-death accounts
• Joint accounts and jointly held property with right of survivorship
• Revocable trust assets
• Retirement accounts and certain pension benefits
• Life insurance proceeds (cash surrender value immediately before death)
• Property transferred within one year of death (with limited exceptions)
• Property over which the decedent held a general power of appointment

Who Qualifies as a Surviving Spouse?

To claim an elective share in Miami, the claimant must be the legal surviving spouse of the decedent. This requirement seems straightforward but is frequently contested. Common disputes include:

• Validity of the marriage — whether the marriage was legally entered into and recognized under Florida law
• Divorce proceedings — whether a divorce was finalized before death
• Annulment claims — allegations that the marriage was fraudulent or invalid
• Waiver — whether the spouse waived elective share rights in a prenuptial or postnuptial agreement
• Abandonment — though Florida does not generally disqualify a spouse for abandonment, related disputes often arise

How and When to File an Elective Share Claim in Miami

The deadlines for asserting an elective share are strict, and missing them can result in the permanent loss of these rights. Under Florida Statute § 732.2135, the election must be filed by the earlier of:

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

The election is generally filed with the Miami-Dade County Probate Court, which handles probate matters within the Eleventh Judicial Circuit. The court may grant extensions in limited circumstances, but waiting too long can be fatal to a claim. Engaging an experienced Miami elective share attorney early is essential to preserve your rights and gather the financial information needed to evaluate the claim.

Common Elective Share Disputes We Handle

1. Disputes Over the Value of the Elective Estate

Because the elective estate includes both probate and non-probate assets, valuing it correctly is often the most contested aspect of these cases. Personal representatives may undervalue closely held business interests, real estate, or trust assets in an attempt to reduce the surviving spouse's recovery. We work with forensic accountants, business valuation experts, and real estate appraisers to ensure that every component of the elective estate is properly identified and valued.

2. Concealed or Transferred Assets

It is not uncommon for a decedent to transfer significant assets shortly before death in an effort to defeat the surviving spouse's elective share. Florida law has anti-avoidance provisions that pull back many of these transfers, but enforcing them requires careful investigation. Our attorneys regularly subpoena bank records, brokerage statements, and trust documents to uncover transfers that should be included in the elective estate.

3. Prenuptial and Postnuptial Agreement Challenges

A spouse may waive elective share rights through a valid marital agreement. However, these waivers are frequently challenged on grounds of fraud, duress, lack of full financial disclosure, or improper execution. Florida courts scrutinize these waivers carefully, particularly when the disparity in financial outcomes is significant.

4. Trust Disputes

Many Miami residents use revocable living trusts as their primary estate planning vehicle. Trust assets are squarely within the elective estate, but trustees may resist disclosure or attempt to argue that certain assets fall outside the calculation. We litigate these issues aggressively in probate and trust court.

5. Disputes Among Beneficiaries

Once the elective share is determined, Florida law has specific rules about which beneficiaries must contribute to satisfy it. This often pits the surviving spouse against children from a prior marriage, trust beneficiaries, or recipients of non-probate transfers. These multi-party disputes require strategic litigation experience.

How the Elective Share Is Satisfied

Once the elective share amount is calculated, Florida law establishes a specific order of contribution from various sources to satisfy the spouse's share. The personal representative must allocate the share against assets passing under the will, the revocable trust, beneficiary designations, and other transfers in a defined sequence. Disputes frequently arise about which assets must be liquidated, distributed in kind, or apportioned. Importantly, certain property the surviving spouse receives outright or in a qualifying trust may be credited against the elective share amount, which can dramatically affect the net recovery.

Elective Share vs. Other Spousal Rights in Florida

The elective share is just one of several protections available to a surviving spouse in Miami. A comprehensive estate strategy must consider how these rights interact:

• Homestead Rights — Florida's constitutional protections for the marital home are powerful and separate from the elective share
• Family Allowance — up to $18,000 may be awarded for the maintenance of the spouse and minor children during administration
• Exempt Property — certain household furnishings, automobiles, and personal items are protected from creditors and other beneficiaries
• Pretermitted Spouse Rights — applies when a spouse married the decedent after execution of the will and was not provided for
• Intestate Share — if there is no valid will, the surviving spouse may take a substantial share by intestacy

An experienced Miami probate attorney will analyze all of these rights together to determine the most advantageous path forward.

Defending Against an Elective Share Claim

Our firm also represents personal representatives, trustees, and beneficiaries defending against elective share claims. Defensive strategies may include:

• Enforcing a valid prenuptial or postnuptial waiver
• Challenging the validity of the marriage
• Asserting that the election was filed after the statutory deadline
• Disputing the inclusion or valuation of specific assets in the elective estate
• Maximizing credits against the elective share for property already passing to the spouse

Why Choose Our Miami Elective Share Attorneys

Elective share disputes sit at the intersection of probate law, trust law, family law, and complex financial analysis. They require an attorney who understands not only the statutory framework but also the practical realities of Miami-Dade probate practice. Our firm offers:

• Focused probate litigation experience in the Miami-Dade County Probate Division
• Deep familiarity with Florida's elective share statutes and the case law interpreting them
• A network of forensic professionals including CPAs, business valuators, and real estate appraisers
• Strategic negotiation skills that often resolve disputes without protracted litigation
• Courtroom-tested trial experience when settlement is not possible

What to Expect When You Hire Our Firm

When you retain our Miami elective share attorneys, we begin with a confidential consultation to evaluate your situation. We will review the will, trust, marital agreements, and available financial information to assess the likely value of the elective estate and identify potential disputes. From there, we develop a strategic plan tailored to your goals—whether that means filing the election immediately, conducting pre-litigation investigation, negotiating with the personal representative, or initiating formal probate litigation.

Throughout the case, we maintain clear communication, provide candid assessments of your options, and aggressively pursue the recovery you are entitled to under Florida law.

Contact a Miami Elective Share Attorney Today

The death of a spouse is one of the most difficult experiences anyone can face. When that loss is compounded by the discovery that you have been excluded from your spouse's estate plan, the situation can feel overwhelming. Florida law provides powerful protections for surviving spouses, but those protections are only meaningful if they are asserted properly and on time.

If you believe you have a potential elective share claim, or if you are defending against one, contact our Miami probate litigation team today to schedule a confidential consultation. We will explain your rights, evaluate your options, and help you make informed decisions about how to protect your financial future.

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