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Elective Share: Doing the Two-Step to Determine Elective Share for a Widow


What is a Widow’s Elective Share in Florida?

Florida elective share law is intended to protect a surviving spouse who has been disinherited or left only a small portion of the estate. The theory is that much of the property of a married decedent will be marital in nature, regardless of how title is held. The protection provided to the surviving spouse is similar to that afforded by property division in a divorce.

On its surface, the law is simple: a surviving spouse may elect to receive 30% of the estate, regardless of the terms of the will. However, making the election and calculating the elective share can be a bit more complicated.

Procedure for Claiming the Elective Share in Florida

The surviving spouse wishing to claim an elective share must file the election within the sooner of:

  • Six months of service of notice of administration; or
  • Two years of the decedent’s death

Once the election has been properly filed and served on the administrator, interested parties have 20 days in which to file an objection to the election. The grounds for objection are quite limited. Generally, the surviving spouse will be entitled to an elective share unless an interested party successfully establishes that the surviving spouse:

  • Procured the marriage by fraud, duress or undue influence; or
  • Killed the decedent

If no party files an objection within the allotted time, the court will enter an order determining the spouse’s right to the elective share. If an objection is filed, the court will hold a hearing to determine whether or not the surviving spouse is entitled to an elective share.

Florida Elective Share Calculation

Whether the election is unchallenged or the court determines that the surviving spouse is entitled to an elective share after a hearing, the court will enter an order stating the amount of the elective share and the specific property to be distributed to the surviving spouse. This is where things get a little complicated.

Originally, the Florida elective share calculation considered only property that was passing through the decedent’s estate. However, with the growing popularity of living trusts and other alternative means of holding and transferring property, limiting the elective share to the property in the decedent’s estate thwarted the purpose of the statute.
In 2001, the Florida legislature greatly expanded the property that is considered in the elective share calculation. Some of the most common types of property now included in the elective estate are:

  • Right of survivorship or payable on death accounts
  • Contents of a revocable trust
  • Death benefits from many types of retirement plans

Other types of property may also be included in the elective estate, and the analysis may become complicated. For example, some property that was transferred by the deceased spouse may nonetheless be considered a part of the elective estate if the deceased retained the right to receive income from or use the property after transfer.

Understanding How Florida Elective Share Law Applies to You

Whether you are a surviving spouse considering an elective share or an interested party in an estate that may be subject to election by a surviving spouse, the best way to understand how the elective share calculation will play out in your case is to talk with an experienced Florida estate lawyer.

Probate Litigation Attorney Thomas Upchurch provides estate planning services, probate, probate litigation and guardianship litigation in Volusia County, Flagler County,Sumter County, Putnam County, Hillsborough County, Miami-Dade County, Broward County, or Palm Beach County.

You may contact Attorney Upchurch at Upchurch Law at (386) 272-7445 or use the contact page.
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