Elective Share and Florida Law
Florida law includes a surviving spouse’s right to an elective share of a deceased spouse’s elective estate. Florida’s Probate Code Chapter 732 contains this right. Legislators enacted this statute to protect the living spouse’s financial security. Under Florida law, the elective share is equal to 30% of the decedent’s elective estate, which may include certain probate and non-probate assets. The elective share can provide a surviving spouse with inheritance rights even when a will or other estate-planning arrangement leaves the spouse little or no property, unless those rights have been validly waived or another legal exception applies.
Key Takeaways
- A surviving spouse who properly elects an elective share is generally entitled to 30% of the decedent’s elective estate, not simply 30% of the probate estate.
- The elective estate may include certain probate and non-probate assets, including some jointly owned property, revocable trust assets, retirement benefits, and other property identified by Florida law.
- A surviving spouse generally must make the election by the earlier of six months after receiving the Notice of Administration or two years after the decedent’s death.
- Elective share rights may be waived, wholly or partly, through a valid written agreement such as a prenuptial or postnuptial agreement.
- Florida law also provides surviving spouses with other protections, including certain exempt property, a family allowance, and intestate or pretermitted-spouse rights when applicable.
What Is the Elective Estate?
The elective estate includes assets and property used in calculating the elective share. Assets may include property, bank accounts, retirement plans, stocks, and other items. A surviving spouse who properly elects to take the elective share is generally entitled to 30% of the elective estate. Because determining which assets are included and how they are valued can be complicated, it can be helpful to work with an experienced Florida probate attorney.
An attorney can help identify and value property that may be included in the elective estate and advise the surviving spouse regarding the requirements and deadlines for making an elective share election.
Calculation and Allocation of Elective Share
To calculate an elective share in Florida, first, the total value of the decedent’s elective estate is established. Depending on the circumstances, the elective estate may include the probate estate, the decedent’s interest in certain jointly owned or beneficiary-designated property, property held in revocable trusts, certain transfers made before death, certain retirement or deferred-compensation benefits, and the applicable net cash surrender value of life insurance policies.
The value of the elective estate is determined under Florida Statute § 732.2055, which provides different valuation rules depending on the type of property involved. For many assets, the calculation takes into account claims paid or payable from the elective estate and applicable mortgages, liens, or security interests. The surviving spouse’s elective share is then equal to 30% of the resulting elective estate.
How Is the Elective Share Paid?
Once the elective share is determined, Florida law establishes how it is satisfied from the property included in the elective estate. Depending on the circumstances, payment may come from the probate estate, trusts, or other recipients of property included in the elective estate.
If a court determines that contribution is required, the personal representative generally has a duty to collect the required amounts from recipients in accordance with the court’s order. Certain beneficiaries and direct recipients of elective-estate property may therefore be required to contribute toward satisfying the surviving spouse’s elective share.
The amount each person is responsible for can depend on the type and value of property received and the statutory order in which the elective share is satisfied.
How Does the Elective Estate Compare to the Probate Estate?
In Florida, the elective estate and probate estate are two different aspects of estate planning. However, probate assets are included in the elective estate. The elective estate is used when determining a surviving spouse’s elective share rights. One example of when this may be used is when the surviving spouse is excluded from the deceased spouse’s will. In this case, the elective share statute may provide the surviving spouse with inheritance rights.
The elective estate includes probate assets and certain assets that may avoid probate. Depending on the circumstances, non-probate property included in the elective estate may include:
- Certain payable-on-death, transfer-on-death, and jointly owned accounts
- Certain retirement or deferred-compensation benefits
- Property held in revocable trusts
- The applicable net cash surrender value of certain life insurance policies
- Certain property transferred by the decedent before death
Simply put, the elective estate includes the probate estate along with certain non-probate assets specifically identified under Florida law. However, not every asset owned or transferred by the decedent is necessarily included, and Florida law provides specific exclusions from the elective estate.
How Long Does a Surviving Spouse Have to Claim an Elective Share?
Under Florida Statute § 732.2135, a surviving spouse generally must file an election to take the elective share by the earlier of:
- Six months after the date a copy of the Notice of Administration is served on the surviving spouse; or
- Two years after the date of the decedent’s death.
Florida law allows the court to grant an extension in certain circumstances, but the statutory deadlines make it important for a surviving spouse to evaluate elective share rights promptly.
Rights of Pretermitted Spouses
In Florida, a surviving spouse who married the decedent after the decedent executed a will may have rights as a pretermitted spouse. Under Florida Statute § 732.301, the surviving spouse generally receives a share equal in value to what the spouse would have received if the decedent had died without a will.
This protection does not apply if the spouse waived the right through a valid prenuptial or postnuptial agreement, the spouse is provided for in the will, or the will shows an intention not to provide for the spouse.
The amount of the intestate share depends on the decedent’s family circumstances. Under Florida law, a surviving spouse may receive either the entire intestate estate or one-half of it depending primarily on whether the decedent or surviving spouse has descendants from another relationship.
Dying Without a Will in Florida
When someone dies without a valid will, the person dies intestate, and their probate assets are distributed according to Florida’s intestacy laws. It’s important to note that “intestate” does not mean that the property now belongs to the State. In fact, Florida has a specific process in determining who receives the decedent’s assets in the absence of a valid will. Here’s a simplified flowchart showing who receives assets when someone passes away without a will in Florida.
If the decedent has a surviving spouse and no surviving descendants, the surviving spouse generally receives the entire intestate estate.
- If all of the decedent’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants, the surviving spouse generally receives the entire intestate estate.
- If the decedent has one or more descendants who are not descendants of the surviving spouse, or if the surviving spouse has descendants who are not descendants of the decedent, the surviving spouse generally receives one-half of the intestate estate. The remaining portion passes according to Florida’s intestacy laws.
- If the decedent was not married at the time of death, the intestate estate generally passes first to the decedent’s descendants.
- If there are no surviving descendants, the estate generally passes to the decedent’s surviving parents. If neither parent survives, Florida law next looks to the decedent’s brothers and sisters and the descendants of any deceased brothers or sisters, followed by more remote relatives in the order established by statute.
- Only when there is no person entitled to inherit under Florida’s intestacy laws does the property escheat to the State of Florida.
The full process can be found in Chapter 732 of The Florida Statutes. This process is very in-depth and often causes confusion/disagreements among beneficiaries. As a result, it’s vital to work with a Florida probate attorney that’s experienced with issues involving intestate succession.
Is It Possible to Disinherit a Spouse in Florida?
Florida law provides significant inheritance protections for surviving spouses, including the right to claim an elective share. However, a spouse may waive some or all of these rights through a valid written agreement, including a prenuptial or postnuptial agreement.
Under Florida Statute § 732.702, a waiver may be made before or after marriage and must satisfy the statute’s execution requirements. When the agreement is entered into after marriage, each spouse must make a fair disclosure of their estate to the other spouse.
Because the validity and scope of a waiver can significantly affect inheritance rights, spouses considering a prenuptial, postnuptial, or other waiver agreement should work with qualified legal counsel.
Additional Protections for Surviving Spouses
In Florida, surviving spouses may have additional protections beyond the elective share, including rights to exempt property and a family allowance.
Under Florida Statute § 732.402, exempt property may include certain household furniture, furnishings, and appliances; up to two qualifying motor vehicles; certain qualified tuition programs; and other property specifically identified by statute. Exempt property is generally protected from claims against the estate, except for perfected security interests.
Florida Statute § 732.403 also allows a surviving spouse and certain dependent lineal heirs to receive a reasonable family allowance for maintenance during the administration of the estate. The total family allowance may not exceed $18,000.
These protections are separate from the elective share and may provide additional financial support to a surviving spouse during the probate process.
Wills, Trusts, and Elective Share Law
Careful estate planning can help reduce estate and inheritance disputes and clarify how assets should be handled after death. Married individuals should consider how Florida’s elective share laws may affect wills, trusts, beneficiary designations, and other parts of an estate plan.
An estate plan may include a will, trust, power of attorney, healthcare surrogate designation, and other legal documents. Because a surviving spouse generally has a statutory right to claim 30% of the elective estate, a will or trust alone may not be sufficient to eliminate the spouse’s elective share rights. Those rights may, however, be waived wholly or partly through a valid written agreement that satisfies Florida law.
Anyone seeking to limit or waive spousal inheritance rights should address those issues as part of a coordinated estate plan that complies with Florida’s requirements.
