In short: A Florida surviving spouse can claim 30% of the elective estate regardless of the will or trust. The elective estate includes the probate estate, revocable trust assets, POD and TOD accounts, joint property, and more (§ 732.2035). The election must be filed by the earlier of 6 months after service of the notice of administration or 2 years after death (§ 732.2135).
Second marriage. He dies. His will and his trust leave everything to his kids from the first marriage. His widow gets nothing.
In Florida, that is often not the end of it. The surviving spouse has a statutory right to the elective share.
What the Elective Share Is
The elective share lets a surviving spouse take 30% of the “elective estate” regardless of what the will, the trust, or the beneficiary designations say. It protects spouses from being disinherited.
It frequently comes up in second and third marriages, when adult children push a parent to do estate planning that cuts out a stepparent. Lawyers who help design a plan whose purpose is to defeat the spouse’s rights are taking on risk. Plans like that get challenged, and they often fail.
The Elective Estate Is Bigger Than the Probate Estate
This is what makes the elective share powerful. The elective estate is not just what passes through probate. Under § 732.2035 it can include, among other things:
- The probate estate
- Assets in the decedent’s revocable trust
- Payable-on-death and transfer-on-death accounts
- The decedent’s share of jointly held property
- Certain transfers made within a year before death
- Retirement accounts and certain other interests
Calculating it, and figuring out who has to contribute to fund it, is where these cases get complicated, and contested.
The Deadline: § 732.2135
“…the election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.”
The earlier of six months after service, or two years after death. Miss it, and the right is gone. If your spouse just died, read this before you do anything else: If Your Spouse Just Died — Watch This Before You Do Anything Else.
The Election Is Personal. Sign It Right.
The right of election belongs to the surviving spouse. The spouse signs it. Under the statute, an attorney in fact or a guardian of the property can exercise it only with court approval. A lawyer’s letter announcing an “intention” to elect is not an election. Florida courts have strictly enforced this, including where the spouse was ill and the paperwork wasn’t right. The formalities are not optional.
Two Steps Under Probate Rule 5.360
- Step one: the election. The spouse files the election on time. That preserves the right.
- Step two: determining the amount. The court determines the elective estate, the 30% share, and how it will be funded and from whom.
Once the election is timely filed, the second step can take time. In big estates it often does.
The Personal Representative Has Duties Here Too
Florida appellate courts have held that a personal representative has affirmative duties in the elective share process, and that when a PR’s failure to act forces the spouse to hire her own lawyer, attorney’s fees can be awarded. A PR and the PR’s lawyer who stonewall a valid elective share claim should expect that the fees they cause may come back at them.
Can the Elective Share Be Waived?
Yes. A spouse can waive the elective share (and other spousal rights) in a properly executed written agreement under § 732.702, typically a prenuptial or postnuptial agreement with the required disclosure. Whether a particular waiver holds up is often its own fight.
Don’t Forget the House
The elective share is separate from the surviving spouse’s homestead rights. A spouse may have both. See the companion article on the surviving spouse and the Florida homestead.
Watch: the videos behind this article
Florida Probate Rule 5.360 Elective Share: The Cases That Tell You Everything
If Your Spouse Just Died — Watch This Before You Do Anything Else (Florida Elective Share § 732.2035)
What is elective share in Florida and did the law recently change
Go Deeper
Frequently Asked Questions
How much is the elective share in Florida?
30% of the elective estate.
What is the deadline to file for the elective share in Florida?
The earlier of 6 months after the surviving spouse is served with the notice of administration, or 2 years after the date of death, under § 732.2135.
What assets are included in the elective estate?
Under § 732.2035, the probate estate, revocable trust property, POD and TOD accounts, the decedent’s share of joint property, certain life insurance cash value, retirement plans, and certain transfers within a year before death, among others.
Can someone else file the elective share for the spouse?
Only with court approval, by an attorney in fact or a guardian of the property, under § 732.2125. A lawyer’s notice of intent is not an election.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a probate litigation lawyer in St. Petersburg for elective share claims, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
