When a married person dies, many surviving spouses assume they will automatically receive everything. In reality, Florida law allows a spouse to leave assets to other beneficiaries. That is where Florida’s elective share comes in.
Florida’s elective share is designed to prevent a surviving spouse from being completely disinherited. It gives the spouse the right to claim a portion of the estate, even if the will says otherwise.
What Is the Elective Share?
Under Florida law, a surviving spouse may claim 30 percent of the elective estate. This right exists regardless of what the deceased spouse’s will provides.
The elective share is governed by Florida Statutes Chapter 732, which outlines who qualifies, how the share is calculated, and how it must be claimed.
In simple terms, the elective share acts as a safety net for surviving spouses.
What Is Included in the Elective Estate?
Many people believe the elective share only applies to probate assets. That is not correct.
Florida’s elective estate can include:
- Probate assets
- Revocable trusts
- Certain jointly owned property
- Pay on death accounts
- Some transferred assets made before death
Because the calculation pulls from multiple sources, elective share disputes often involve detailed financial analysis.
Who Can Claim the Elective Share?
Only a legally married spouse can claim the elective share.
Eligibility depends on:
- A valid marriage at the time of death
- No finalized divorce before death
- No valid waiver of elective share rights
Former spouses, unmarried partners, and fiancés are not entitled to an elective share.
Can a Spouse Be Disinherited in Florida?
Yes, but only to a point. A spouse can be left less than 30 percent in a will. However, the surviving spouse may then elect to take the statutory share instead.
There are exceptions. A spouse may waive elective share rights through a valid prenuptial or postnuptial agreement.
How Does a Spouse Claim the Elective Share?
The elective share is not automatic. It must be formally claimed.
A surviving spouse must:
- File an election with the probate court
- Meet strict filing deadlines
- Follow procedural rules
Missing the deadline can permanently forfeit the right. The Florida Courts provide procedural guidance and forms.
Why Elective Share Cases Become Complicated
Elective share claims often involve:
- Valuation disputes
- Trust analysis
- Hidden or transferred assets
- Blended family conflicts
These cases frequently intersect with probate litigation, trust disputes, and financial discovery.
How the Elective Share Interacts With Other Spousal Rights
Florida law also provides additional protections, including:
- Homestead rights
- Exempt property
- Family allowance
These benefits are separate from the elective share and may apply even if the spouse does not elect against the will.
Key Takeaways
- Florida’s elective share allows a surviving spouse to claim 30 percent of the elective estate
- The elective estate may include probate and non probate assets
- The right must be actively claimed through the probate court
- Deadlines are strict and missing them can waive the claim
- Elective share disputes often involve trusts, valuations, and financial analysis
Frequently Asked Questions
Q: Is the elective share automatic in Florida?
A: No. The surviving spouse must file a formal election with the probate court.
Q: How much is the elective share?
A: Generally, 30 percent of the elective estate.
Q: Does the elective share only apply to probate assets?
A: No. It can include trusts and certain non probate transfers.
Q: Can elective share rights be waived?
A: Yes. A valid prenuptial or postnuptial agreement may waive the right.
Q: What happens if the spouse misses the filing deadline?
A: The right may be permanently lost.
Q: Does the elective share override a will?
A: It does not rewrite the will, but it allows the spouse to claim a statutory portion instead.
This is intended to be general guidance. If you have questions or concerns about estate planning or probate, we recommend you consult with Attorney O’ Connor.
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Attorney O’Connor has extensive experience with estate planning and probate law and is available to serve you in Tampa Bay, Brandon, Kissimmee, Lakeland, Plant City, Hillsborough County, Pinellas County, Polk County and Osceola County.
