Florida’s elective share law exists to prevent a surviving spouse from being completely disinherited. Even if you were left out of your spouse’s will — or your spouse died without a will that adequately provides for you — Florida law gives you the right to claim a share of the estate. And in recent years, the law has changed in ways that significantly expand what a surviving spouse can claim.
The Basic Rule: Florida § 732.2035
Under Florida Statute § 732.2035, a surviving spouse is entitled to an elective share equal to 30% of the elective estate — a defined pool of assets that goes far beyond what simply passes through the decedent’s probate estate. The elective estate includes probate assets, assets held in revocable trusts, jointly held property, certain transfers made during the decedent’s lifetime, and other assets that the decedent controlled at death.
This is critically important: a wealthy person cannot shelter assets in a revocable trust or transfer property before death to defeat the surviving spouse’s elective share. Florida’s elective estate calculation is designed to capture the economic reality of what the decedent owned and controlled.
The 2020 Amendment — A Significant Change
Florida substantially amended its elective share law in 2020. The changes affected how the elective estate is calculated, what assets are included, and how certain transfers are treated. If you are relying on estate planning advice that pre-dates 2020 — or if your estate plan has not been reviewed since the amendment — it may not reflect the current law.
The most significant practical effect of the amendment is that it eliminated many of the planning strategies that were previously used to reduce the elective estate. Transfers to irrevocable trusts, life insurance arrangements, and other pre-death dispositions that were once outside the elective estate may now be captured by the updated calculation.
Who Can Use the Elective Share?
The elective share is available only to a surviving spouse. It must be claimed within 6 months of service of the formal notice of administration or within 2 years of the decedent’s death, whichever is earlier. Miss that deadline and the right is gone. If you are a surviving spouse who believes you have not received your fair share of your spouse’s estate, you need to consult a Florida probate attorney immediately to preserve your rights.
Read the Exact Statute
The Florida statutes cited in this article are published word-for-word — free, complete, and fully organized — at FloridaRules.net.
FloridaRules.net — Every Florida Probate Rule, Statute, and Case Commentary. In One Place.
