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Florida’s Elective Share and Homestead Laws


Following the death of a spouse, Florida law entitles the surviving spouse to a share of the deceased spouse’s estate—regardless of the terms of an existing will. In fact, under Florida law, a spouse cannot be disinherited by a will. And, if there isn’t a will in place, a surviving spouse is entitled to a substantial portion of his or her deceased spouse’s estate. In this article, we examine two important issues that affect spousal rights in Florida following a spouse’s death: elective share and the homestead rights of a surviving spouse in Florida.

Overview of Florida’s Elective Share Law 

Florida’s elective share law protects a surviving spouse who has been left out of his or her deceased spouse’s will or left only a small portion of his or her deceased spouse’s estate. For a spouse who has been disinherited from a will, the Florida elective share law offers crucial protection.

Florida’s elective share law applies regardless of the duration of the marriage. In fact, it even applies if a married couple is estranged. This is an important point for couples who have effectively ended their marriage but have not yet legally divorced.

The spousal elective share in Florida was originally intended to protect widowed women who had been entirely dependent on their husbands. Today, however, the spousal elective share is available to both wives and husbands. And even if neither spouse is dependent on the other, the law in Florida views marriage as a partnership in which assets are obtained and kept through a joint effort. Thus, as explained in detail below, a spouse is entitled to an elective share of his or her deceased spouse’s elective estate.

Elective Share Rights of a Surviving Spouse in Florida 

Pursuant to Florida’s elective share law, a Florida resident may not prevent his or her spouse from receiving a share of his or her estate, property, or trust, upon death. A surviving spouse is entitled to make an election to take an elective share of his or her deceased spouse’s elective estate. Specifically, a surviving spouse is entitled to an elective share equal to 30% of the elective estate. A spouse’s elective estate is calculated by adding the net amounts of the deceased spouse’s probate and non-probate assets. Under Florida law, the following property is included in the elective estate:

  • Any interest the deceased spouse held in homestead property
  • The probate estate
  • Property transferred prior to the spouse’s death if the transfer was revocable by the deceased spouse
  • The deceased spouse’s interests in securities or accounts held in a form that would transfer outside of the probate estate, such as co-ownership with rights of survivorship, pay on death, or trust accounts
  • The deceased spouse’s fractional interest in property co-owned as a tenancy by the entirety or joint tenancy with rights of survivorship
  • Benefits under any private or public pension, retirement plan, or deferred compensation plan
  • The deceased spouse’s interest in the value of any policy on his or her life as of the time immediately preceding his or her death
  • Certain types of property that was transferred fraudulently in the year preceding the deceased spouse’s death 

Property interests included in the elective estate that transfer to the surviving spouse count towards satisfaction of the elective share. This includes property transferred to the surviving spouse through the deceased spouse’s will or trust, the deceased spouse’s share of any property that is jointly owned with the surviving spouse, property received by beneficiary designation, and proceeds from a life insurance policy on the deceased spouse’s life that are payable to the surviving spouse and owned by a person other than the spouse. If these assets don’t satisfy the elective share, then recipients of the deceased spouse’s property must contribute to the satisfaction of the elective share.

How to Claim an Elective Estate

In order to claim an elective estate, a surviving spouse must file an election on or before the earlier of:

  • Six months from the date that he or she received a notice of administration, or
  • Two years from the deceased spouse’s date of death.

A surviving spouse may, if there is good cause, request an extension of the time to file the election. Such a request must be filed within the above timeline, with the exception being that certain legal proceedings may trigger a later filing deadline. However, the two-year deadline above cannot be extended.

Valuing Elective Share Property 

Valuing the property that a surviving spouse will receive to fulfill the elective share can be complicated. This is partially due to the fact that the valuation date will differ depending on the type of property and the current owner of the property. For example, the value of property that is transferred in satisfaction of the elective share is based on the date of the deceased spouse’s death. However, the value of property that was transferred to the surviving spouse during the lifetime of the deceased spouse is determined based on the date of transfer. Generally, the value of elective share property is assessed in the same way as estate property. The estate’s personal representative is responsible for determining the value of elective share property, and he or she may hire an appraiser or other expert to help with the process.

Overview of Florida’s Homestead Law 

Like Florida’s elective share law, Florida’s homestead law is an important component of spousal rights in Florida. Florida’s homestead law protects a resident’s primary home from levy and execution by judgment creditors. Under the Florida Constitution, a judgment creditor can’t force the sale of a Florida resident’s home to satisfy a money judgment. Florida’s homestead exemption applies to single family homes, condominiums, mobile homes, and manufactured homes.

The protection offered by Florida’s homestead law is one of the strongest in the country. The law provides protection for an unlimited amount of value in a resident’s Florida home. In addition to real estate, Florida’s homestead law protects mobile homes, co-ops, recreational vehicles, and long-term leases.

Florida Homestead Requirements 

Here is an overview of Florida’s homestead requirements:

  • To qualify for a homestead exemption in Florida, a person must be a permanent Florida resident, and the homestead property must be the person’s primary place of residence.
  • A second home or investment property is not eligible for a homestead exemption.
  • Only natural persons may qualify for homestead protection. Therefore, a property titled in the name of an LLC, corporation, irrevocable trust, or partnership can’t qualify as homestead property. 
  • Property that is owned by a living trust can qualify as homestead property. 
  • A land trust may own homestead property.

Florida Homestead Lot Size Limits 

In addition to the requirements above, in order to qualify as a homestead property, a residence must adhere to lot size limits. In Florida, homestead protection is afforded to a residence within a municipality on a lot of up to one-half acre, and a residence outside a municipality located on 160 contiguous acres. Such contiguous property up to 160 acres is eligible for the homestead exemption even if the contiguous property has separate tax numbers and legal descriptions. In addition, regardless of whether the homestead is in the country or the city, there is no restriction on the value of the property or the square footage of the physical residence. If a homestead is on a lot that exceeds the one-half acre limit or the160-acre limit, then the homestead protection will be allocated pro-rata to the total value of the property.

Homestead Rights of a Surviving Spouse in Florida 

In Florida, a resident property owner can’t freely devise his or her homestead by will or trust if he or she has a surviving spouse or minor child. If the deceased property owner is survived by a spouse and a minor child, or if he or she has no minor child and the homestead is not fully devised to the surviving spouse, any devise of the homestead is ineffective, and the homestead property will pass with a life estate to the spouse with the remainder passing in equal shares to the deceased spouse’s descendants.

Within six months of a deceased spouse’s death, a surviving spouse may elect to take an undivided one-half interest in the homestead property instead of a life estate. This election is irrevocable and must be recorded in the official records of the county where the property is located, not filed as part of the probate proceeding.

How an Elective Share and Estate Planning Lawyer Can Help You 

Whether you have questions regarding the elective share or homestead rights of a surviving spouse in Florida, or you need assistance with a general estate planning matter, you need an experienced probate and estate litigatin attorney on your side. At Upchurch Law, attorney Thomas Upchurch utilizes his extensive knowledge and experience to provide estate planning services to Florida residents and their families. If you have questions about your spousal rights in Florida or want to know how to arrange your affairs to provide maximum protection to your loved ones, Upchurch Law is here for you. 

Please contact us today to schedule a free consultation to review your estate planning needs.  

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