Florida’s spousal elective share is a statutory right that guarantees a surviving spouse at least 30% of the deceased spouse’s estate, regardless of what the will says. Under Florida Statutes Section 732.2065, a surviving spouse can “elect against” the will and claim this 30% share even if the decedent intended to leave everything to children from a prior marriage. The death of wrestling legend Hulk Hogan in July 2025 brought this issue into sharp focus, as his widow Sky Daily—married less than two years before his death—held potential claims to a portion of his approximately $5 million in probateable assets, despite Hogan’s will naming only his son Nick as beneficiary.
What Happened with Hulk Hogan’s Estate?
Hulk Hogan died on July 24, 2025, at age 71 from acute myocardial infarction at his Clearwater, Florida home. He had married yoga instructor Sky Daily in September 2023—less than two years before his death—after a brief courtship. Court filings revealed that Hogan’s will, last amended in July 2023 just before his wedding, named his son Nick Hogan as the sole beneficiary. His daughter Brooke had requested to be removed from his will in 2023, reportedly because she didn’t trust the people around her father. Sky Daily was listed as his “surviving spouse” in the probate filings, which under Florida law gives her significant rights regardless of what the will actually says.
Court filings revealed probateable assets totaling approximately $5 million: $799,000 in personal property, intellectual property valued at $4 million, $200,000 in cryptocurrency, and a potential medical malpractice claim related to a surgery Hogan underwent shortly before his death. However, Hogan’s total estate was worth approximately $16 million. His two adjacent Florida homes—valued at an estimated $11 million—were not listed as part of the probate estate because they were held in a separate trust or LLC, making them non-probate assets. This distinction matters for elective share purposes because Florida’s elective estate calculation captures many non-probate assets, including revocable trusts. In September 2025, Sky Daily filed court documents consenting to Nick’s appointment as co-administrator of the estate, waiving her right to a hearing on the matter.
What Is Florida’s 30% Spousal Elective Share?
Florida law makes it essentially impossible to completely disinherit a spouse. Under Florida Statutes Section 732.201, a surviving spouse has the right to claim an “elective share” equal to 30% of the decedent’s “elective estate.” This right exists regardless of what the will says, how long the marriage lasted, or whether the couple was separated at the time of death. The elective share represents a public policy decision that spouses owe each other mutual support, and that a surviving spouse should not be left destitute simply because the deceased spouse chose not to provide for them.
The “elective estate” is broader than just the probate estate. It includes not only assets passing under the will but also assets in revocable trusts, certain transfers made within one year of death, jointly held property, retirement accounts, and other assets the decedent controlled. This expansive definition prevents people from circumventing the elective share by moving assets into trusts or beneficiary-designated accounts. To claim the elective share, the surviving spouse must file an election with the probate court within six months of receiving notice of administration, or within two years of death, whichever comes first.
Why the Elective Share Creates Problems for Blended Families
The elective share becomes particularly problematic in second or third marriages where the deceased spouse wanted to leave assets primarily to children from a prior relationship. Consider a common scenario: a widower with two adult children remarries late in life. He intends for his children to inherit his estate, so his will leaves everything to them. When he dies, his new spouse can elect against the will and claim 30% of his estate—assets his children expected to inherit. The marriage may have lasted only a few years, but the spouse’s elective share right is identical to that of a spouse married for decades. This is precisely the situation Hogan’s estate presented, with a marriage of less than two years potentially entitling Sky Daily to a substantial portion of an estate accumulated over his entire career.
How to Protect Your Estate Plan from Elective Share Claims
The only reliable way to prevent a spouse from claiming an elective share is through a valid prenuptial or postnuptial agreement that explicitly waives the right. Under Florida Statutes Section 732.702, a spouse can waive the elective share, intestate share, homestead rights, and other spousal rights through a written agreement signed in the presence of two witnesses. For prenuptial agreements, Florida does not require full financial disclosure for the waiver to be valid, though disclosure is always advisable to prevent later challenges. For postnuptial agreements, each spouse must provide fair disclosure of their estate, or the waiver will be unenforceable.
Without a valid waiver, no amount of creative estate planning can eliminate the elective share. Putting assets in an irrevocable trust, transferring property to children during your lifetime, or structuring assets as non-probate property may reduce the probate estate but will not eliminate the elective share calculation, which captures most of these arrangements. If you are entering a marriage later in life, have children from a prior relationship, or have significant assets you want to protect for specific beneficiaries, a prenuptial agreement with an elective share waiver is not optional—it is essential.
Frequently Asked Questions About Florida’s Spousal Elective Share
Can I disinherit my spouse in Florida?
Not without their consent. Florida law guarantees a surviving spouse at least 30% of the elective estate unless the spouse has signed a valid waiver in a prenuptial or postnuptial agreement. Any will provision attempting to leave a spouse less than this amount can be overridden by the spouse filing an election with the probate court.
Does the length of the marriage affect the elective share?
No. A spouse married for two years has the same 30% elective share right as a spouse married for forty years. Florida’s statute makes no distinction based on the duration of the marriage, which is why prenuptial agreements are particularly important for late-in-life marriages.
What assets are included in the elective estate?
The elective estate is broader than the probate estate. It includes assets passing under the will, assets in revocable trusts, the decedent’s share of jointly held property, retirement accounts and life insurance payable to someone other than the spouse, and certain transfers made within one year of death. This expansive definition prevents people from hiding assets in non-probate arrangements.
Can I waive my spouse’s elective share in my will?
No. You cannot waive your spouse’s rights—only your spouse can waive their own rights. A waiver must be in writing, signed by the waiving spouse in the presence of two witnesses, and is typically part of a prenuptial or postnuptial agreement. Your will cannot eliminate your spouse’s statutory rights without their agreement.
What happens if my spouse doesn’t claim the elective share?
The elective share is not automatic—it must be claimed by filing an election with the probate court within six months of receiving notice of administration, or two years from death, whichever is earlier. If your spouse does not file a timely election, the estate is distributed according to your will or trust. However, you cannot rely on a spouse choosing not to claim the share; the only protection is a valid prenuptial or postnuptial waiver.
Planning for Florida’s Spousal Elective Share
The Hulk Hogan estate illustrates a situation that plays out in Florida probate courts constantly: a late-in-life marriage, children from prior relationships, and a surviving spouse with significant statutory rights to assets the decedent may have intended for others. Whether Sky Daily ultimately claims her elective share or not, the legal right exists, and Hogan’s estate planning had to account for it. For anyone entering marriage with existing wealth, children from prior relationships, or specific intentions about who should inherit, Florida’s elective share law demands proactive planning. A properly drafted prenuptial agreement with an explicit waiver is the only reliable protection.
About the Author: Kevin C. Martin is an experienced estate planning attorney who focuses on families with complex planning needs, including blended families, international clients, and clients relocating between jurisdictions. He serves clients in the D.C. metro area and Florida. To discuss your estate plan, schedule a consultation at kevinmartinlaw.com.