Florida Elective Share Laws
Your rights as a surviving spouse matter.
What Happens When a Surviving Spouse Claims an Elective Share in Florida
Under Florida law, a surviving spouse can claim a part of their deceased spouse’s estate, regardless of what the will or trust states. This claim is known as the elective share. It is typically 30% of the “elective estate,” a broad category of assets. This guide outlines how the elective share works, which assets are included in the elective estate, and the process for making a claim.
What Does Florida’s Elective Share Law Allow a Surviving Spouse to Claim?
Florida’s elective share law grants a surviving spouse a legal right to 30% of the decedent’s elective estate. This right exists even if the deceased spouse’s will or trust provides a smaller amount or nothing at all.
This entitlement applies to most estates unless the spouse has legally waived it. The law’s primary goal is to ensure a spouse cannot be completely disinherited through estate planning instruments or other asset transfers.
What Property Is Included in the Elective Estate
The elective estate is a broad legal concept that includes more than just assets that go through probate. To prevent individuals from circumventing the 30% rule, the law captures various types of property, such as:
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The decedent’s probate estate.
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Assets held in a revocable trust created by the decedent.
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Property owned jointly with rights of survivorship.
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Accounts with payable-on-death (POD) or transfer-on-death (TOD) designations.
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Retirement accounts, pensions, and some annuities.
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The cash surrender value of life insurance policies on the decedent’s life.
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Certain property transfers made by the decedent during their lifetime while retaining some form of control or benefit.
Because the definition is so comprehensive, moving assets into a trust or naming a beneficiary other than the spouse does not shield them from the elective share calculation. The law requires a thorough accounting of both probate and non-probate assets.
Filing Requirements and Legal Deadlines
A surviving spouse must formally claim the elective share by filing a notice of election with the probate court handling the estate. Florida law establishes strict deadlines for this filing:
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The election must be filed within six months of receiving the formal Notice of Administration from the estate.
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Alternatively, it must be filed within two years of the decedent’s date of death.
The earlier of these two dates is the final deadline. Failure to file within this period permanently forfeits the right to the elective share. Courts are very strict in enforcing this statutory deadline.
How the Elective Share Is Calculated and Paid
After the spouse files the election, the court calculates the total value of the elective estate. The elective share is 30% of this total value. The law then dictates how this share is paid.
The payment is sourced from various assets in a specific order. This often requires contributions from probate assets, trust funds, and other non-probate transfers. Consequently, beneficiaries who received these assets may have to contribute a portion of their inheritance to satisfy the spouse’s claim.
When the Right Can Be Waived or Does Not Apply
A spouse can give up their right to an elective share by signing a valid prenuptial or postnuptial agreement. For such a waiver to be valid, it must be in writing and signed voluntarily. The agreement must also be based on fair financial disclosure from both parties, or the right to that disclosure must be clearly waived.
The elective share right is exclusive to legally married spouses. Florida law does not grant this right to unmarried partners, no matter how long the relationship lasted or the level of financial dependency.
When Do Elective Share Claims Become More Complex in Florida?
Elective share claims can become more complex when assets are held outside the probate estate or when a prenuptial or postnuptial agreement is in place. Florida law provides specific rules for these situations, particularly in how it defines the elective estate and how it assesses marital agreements.
How Trusts and Non-Probate Assets Are Treated
Florida law does not limit the elective share to just probate assets. The elective estate includes certain non-probate assets to prevent a deceased spouse from moving assets out of reach of the surviving spouse.
A common example is a revocable trust. If the deceased spouse controlled the trust assets during their lifetime, those assets are typically included in the elective estate, even if the trust names other beneficiaries.
Irrevocable trusts are often excluded. However, the analysis depends on when the trust was created and whether the deceased spouse retained any rights to it. Transfers made shortly before death or under other specific circumstances may still be subject to the elective share.
Effect of Prenuptial and Postnuptial Agreements
Under Florida law, a surviving spouse can waive their right to an elective share through a valid marital agreement. For this waiver to be legally enforceable, it must meet several conditions:
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It must be in writing and signed by the waiving spouse.
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It must be signed voluntarily.
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It requires fair disclosure of the other spouse’s finances, unless the right to disclosure was clearly waived in writing.
If these requirements are not met, a court may rule that the waiver is invalid. For instance, if one spouse did not have a reasonable understanding of the other’s financial situation before signing, the agreement may not be enough to block an elective share claim.
Situations That Commonly Lead to Disputes
Certain family and financial situations often lead to elective share disputes. These include:
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Second marriages where a will primarily leaves assets to children from a first marriage.
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Estates where most of the wealth is held in accounts with named beneficiaries instead of passing through probate.
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Arrangements where one spouse managed all the finances, leaving the other with little information.
In these cases, determining the elective estate requires a thorough review of all account titles, trust documents, and past financial transfers.
Why a Full Asset Review Is Necessary
Florida’s elective share laws are designed to account for the total value of a deceased person’s wealth, not just the assets that go through probate. This means the calculation often involves different types of assets, questions about their valuation, and contributions from various beneficiaries.
Therefore, resolving an elective share claim often requires cooperation between the personal representative, trustees, and financial institutions to properly identify, value, and distribute assets according to the law.
Why Working With a Lawyer Matters in Elective Share Cases
Elective share claims are more than just a simple request. Florida law requires a detailed calculation of the elective estate, strict compliance with filing deadlines, and proper asset allocation.
Missing a step or misunderstanding what is included in the estate can directly affect the amount a surviving spouse receives.
Identifying and Valuing the Elective Estate
A lawyer helps determine which assets must be included in the elective estate calculation. This process involves reviewing trust documents, account designations, and prior property transfers to see if they fall within the legal definition. Accurate valuation is critical because the elective share is based on the total value of the estate.
Meeting Court Requirements and Deadlines
The election must be filed within six months from the service of the Notice of Administration or two years from the date of death, whichever is earlier. Courts enforce this deadline strictly. An attorney ensures the election is filed correctly and on time in the proper court, reducing the risk of the claim being denied.
Addressing Disputes and Asset Contributions
Elective share cases often involve multiple parties, including beneficiaries, trustees, and personal representatives. An estate planning lawyer can help resolve disputes over which assets should be included and how contributions from different sources are calculated to fund the spouse’s share.
Coordinating With the Overall Estate Plan
Elective share rights frequently intersect with trusts, beneficiary designations, and marital agreements. Legal guidance helps ensure all these elements are reviewed together, so the outcome aligns with both Florida law and the structure of the deceased’s estate.
What to Do If You Have Questions About Elective Share Rights in Florida
Florida’s elective share rules require strict adherence to deadlines, detailed asset calculations, and coordination between probate and non-probate assets. If you are uncertain about how these laws apply to your circumstances, consulting with an attorney can help you understand your options and prevent costly errors.
To receive guidance based on your specific situation, you may contact Kevin C. Martin, Attorney at Law, PLLC, to better understand your next steps.