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Florida Probate: Guide to Florida's Elective Share Law

September 22

Complete Guide to Elective Share Law in Florida

Written by Thomas Upchurch

Florida’s elective share law provides a safety net for a surviving spouse who has been cut out of the deceased spouse’s will or left a very small portion of the estate. For a widow or widower who has been disinherited, the Florida elective share statute is a crucial protection. For the deceased’s intended beneficiary, it can be an unpleasant and costly surprise.

Here’s what you need to know about who is entitled to an elective share, how to make the election, and how the elective share is calculated.

Here’s what you need to know about who is entitled to an elective share, how to make the election, and how the elective share is calculated.

What is the Florida Spousal Elective Share?

The elective share is a percentage of the deceased’s estate that the surviving spouse may claim, regardless of the terms of the will. With limited exceptions (which we’ll address in a later section), the surviving spouse can override the terms of the will to collect the elective share. In Florida, the elective share is 30% of the estate, but the calculation isn’t quite as straightforward as it might sound. That’s because some property that isn’t actually part of the estate is considered for purposes of calculating the elective share.

Originally, the spousal elective share was intended to protect widowed women who had been dependent on their husbands. The law also helped ensure that the community did not become responsible for a widow if the deceased husband had assets that could have supported them. Today, of course, the spousal elective share is available to both husbands and wives. Although neither spouse is necessarily dependent on the other, the law still views marriage as a partnership in which assets are typically collected and preserved through a joint effort.

The philosophy behind the elective share has been called into question in recent years, as second and third marriages become more common and the deceased’s assets aren’t necessarily the product of a long-term partnership. But current Florida law provides this protection to the person the deceased was married to at the time of his or her death.

Who is Entitled to an Elective Share?

Generally, the surviving spouse is entitled to an elective share of the deceased’s estate. That’s true regardless of the duration of the marriage, and even if the couple is estranged. It’s important to be aware of this if you have effectively ended your marriage but have not legally divorced. Other measures, such as willing property to someone else, placing funds in trust, or granting a right of survivorship to another person may not ensure that property is distributed as you would have wished.

However, it is possible for a spouse to waive this right, either in a pre-nuptial or post-nuptial agreement. One scenario in which a couple may want to execute this sort of agreement might be a second marriage late in life, with one or both spouses having children from a previous relationship. In that situation, each spouse may have already accrued wealth of their own prior to the marriage, and may want to leave the bulk of their assets to their children.

It should also be noted that the elective share is intended to allow the surviving spouse to override provisions the deceased has made, such as a will or the creation of a trust or an attempt to pass property to another person through rights of survivorship or a similar arrangement. If the deceased spouse made no arrangements, then the distribution of assets is governed by Florida’s law of intestate succession. Under intestate succession, the surviving spouse will typically receive a larger share of the deceased’s property than he or she would through the elective share.

Defining the Estate for Elective Share Purposes

If a beneficiary of a will is bequeathed 30% of the decedent’s estate, the beneficiary will receive 30% of what remains of the estate property after debts of the estate and administrative expenses have been paid. But, property that passes outside the estate, such as property placed in a living trust, won’t be considered.

For purposes of the elective share, though, certain assets are considered even though they aren’t included in the estate. This larger pool of assets is called the “elective estate.” Under Florida Statute 732.2035, the following property is included in the elective estate:

  • The probate estate
  • Whatever interest the decedent held in protected homestead property
  • The decedent’s interested in accounts or securities held in a form that would transfer outside of the probate estate, such as pay on death, co-ownership with rights of survivorship, or trust accounts
  • The decedent’s fractional interest in property co-owned as a joint tenancy with rights of survivorship or a tenancy by the entirety
  • Property transferred prior to death if the transfer was revocable by the decedent
  • The decedent’s interest in the net cash surrender value of any policy on his or her life, as of the time immediately before death
  • Benefits under any public or private pension, retirement, deferred compensation plan or similar arrangement (excluding Railroad benefits and Social Security)
  • Certain property transferred fraudulently within the year preceding the deceased spouse’s death

It is important to note that depending on how property was titled, the decedent’s interest might be 100%, 50%, or some other fraction. An experienced probate attorney is the best source of information about exactly which property will be included in the elective estate and what portion of the value will be included.

What is the Net Elective Estate?

The net elective estate is the value of the assets included in the elective estate, less any liabilities of the estate. The surviving spouse’s elective share takes priority over bequests to other people, such as beneficiaries of the deceased’s will or of a revocable trust created by the deceased. It even takes priority over costs of administration, which can create complications for the remaining beneficiaries. But, it does not take priority over legitimate creditors of the estate.

That means if the deceased had outstanding debts at the time of his or her death, the net elective estate may be smaller than the aggregate value of the assets included. For example, if the assets included in the elective estate total $150,000, but the deceased had $25,000 in outstanding credit card debt and medical bills when he died, the net elective estate will be $125,000, not the full $150,000. The creditors are paid before any beneficiary, including the surviving spouse.

Why is the Elective Estate Different from the Probate Estate?

Election of the spousal share is often described as “electing against the will.” So, why does the elective estate include property that wouldn’t have passed through the will?

Including this property prevents one spouse from avoiding the elective share law and effectively disinheriting the other by keeping property from passing through probate. It also ensures that the spouse doesn’t end up with more than either the deceased or the law intended just because he or she received property through other channels.

For example, without this expanded definition of the elective estate, a husband who wanted to leave little or nothing to his wife could put most of his assets into a brokerage account with rights of survivorship to his brother, or into a piece of real estate in joint tenancy with his adult daughter. The wife would still be entitled to elect against the will, but there would be very little property passing through probate, so she would be largely unprotected.

On the other hand, imagine that a wife left only a small bequest to her husband in her will, because she also left a large retirement account with her husband as beneficiary and a jointly owned home with no mortgage that he retained as a tenant by the entirety. The husband would already be receiving the vast majority of the wife’s assets. So, the law does not intend that he should also be able to elect to take 30% of the probate estate, on top of the property he has already received through other channels.

What Property Will the Spouse Electing against the Will Receive?

Florida law spells out not only which property will be included in the elective estate, but also which order in which assets should be applied to reach the 30% allocation payable to the surviving spouse.

The actual determination is slightly more complicated than the list suggests, because there are certain qualifications intended to ensure that property interests are not accidentally diminished. But, in general, the elective share is paid from assets already in the possession of or payable to the surviving spouse, such as:

  • Property interests included in the elective estate that pass to the surviving spouse or have already been passed to the surviving spouse
  • Pension, retirement and related benefits as described above
  • Life insurance proceeds payable to the surviving spouse
  • Property held in trust for the benefit of the surviving spouse

If property that falls into this category isn’t sufficient to fulfill the 30% payable to the surviving spouse, the remainder comes out of assets that would otherwise have been distributed to others–or, in some cases, that have already been distributed to others.

The first source is the probate estate and any revocable trusts. If the probate estate and the assets in any available revocable trusts include more assets than are needed to fulfill the elective share, contribution is apportioned among all beneficiaries.

Imagine, for example, that a decedent left a probate estate worth $100,000 after liabilities and costs of administration, and no revocable trusts. The beneficiaries of the will are six grandchildren, each entitled to an equal share of the estate. But, $40,000 is needed to fulfill the elective share. In this situation, the $40,000 will be allocated to the surviving spouse, leaving $60,000 for distribution. Each beneficiary will receive $10,000 instead of the $16,667 each would otherwise have received.

If the probate estate and revocable trusts don’t provide sufficient funds, the remaining obligation shifts to another category, and then another, until the interest is satisfied. At each level, the contribution is divided among the direct beneficiaries in that group.

How is Property Valued for Purposes of Satisfying the Elective Share?

Valuing property that will be distributed to the surviving spouse to fulfill the elective share is a bit complicated. In part, that’s because the valuation date differs depending on the type of property and who currently owns it. For instance, property transferred in satisfaction of the elective share, is valued as of the deceased spouse’s date of death. So is property held in a special needs trust for the benefit of the surviving spouse. But, property that was transferred to the surviving spouse during the deceased’s lifetime is valued based on the date of transfer.

The value of this property is typically assessed in the same way estate property is generally. The personal representative is responsible for determining the value, and may hire an appraiser or other expert to assist in that process.

Claiming the Florida Elective Share

The surviving spouse may file an election on or before the earlier of:

  • Six months from the date he or she was served with a notice of administration, or
  • Two years from the deceased’s date of death

A surviving spouse may, with good cause, request an extension of the time to make the election. A request for extension must be filed within the timeline set forth above, with one exception. Certain proceedings may trigger a later deadline for requesting an extension. However, the two-years-from-death mark is a hard cut-off.

The alternative deadlines for making the election and for requesting an extension can be confusing, so it’s in your best interest to get advice from an experienced probate attorney right away, to make sure you have plenty of time to act.

The election may also be filed by an agent of the surviving spouse, or by a guardian of the surviving spouse’s property. However, when the election is initiated this way, the agent or guardian must first seek court approval.

The Elective Share Process

  1. When an election is filed, the personal representative must serve notice on all interested parties within 20 days. Interested parties have 20 days from the date of service of notice to file any objections with the court.
  2. The court determines entitlement to the elective share. If objections have been filed, this determination is made after notice and hearing.
  3. The personal representative files a petition to determine the amount of the elective share.
  4. The personal representative prepares and serves an inventory of the elective estate.
  5. Interested parties have the opportunity to make objections to the amount or distribution.
  6. The court determines the amount of the elective share and where contributions will come from. If there have been objections, this determination is made after notice and hearing.
  7. It is generally the personal representative’s responsibility to collect and distribute the elective share.

Are You Entitled to an Elective Share?

If you’ve recently lost a spouse and believe it may be beneficial to claim the elective share, it’s time to talk to an experienced Florida probate lawyer. Attorney Thomas Upchurch has extensive experience with elective shares and other aspects of the probate process. To learn more about how we can put our knowledge to work for you, schedule a consultation right now. Just call 386-320-6169 or fill out the contact form on this page.

Frequently Asked Questions (FAQs) about the Florida Elective Share

Looking for one specific piece of information and don’t want to read through the whole guide? Here are answers to the most common questions we hear about the Florida spousal elective share.

What is the Elective Share?

The elective share is a percentage of the deceased spouse’s property that the surviving spouse can claim, even if he or she was left less (or nothing) in the deceased’s will and through other types of transfers.

How Much is the Elective Share?

The elective share in Florida is 30% of the elective estate. It’s important to note that the elective state includes more than just the probate estate, and the value may be much higher. The elective estate may include property such as the assets in a revocable trust created by the deceased spouse, retirement accounts, and more.

Who is Entitled to the Elective Share?

Generally, any surviving spouse is entitled to the elective share, even if the marriage is quite new or the spouses were separated. However, the right to claim the elective share can be waived in a pre-nuptial or post-nuptial agreement.

How Long Do I Have to File an Election?

Generally, the deadline to file an election is six months from service of notice of administration or two years from the date of death–whichever comes first. In some circumstances, it’s possible to request an extension from the court.

Where Do Funds to Satisfy the Elective Share Come From?

Assets already distributable to the surviving spouse or that have already been distributed to the surviving spouse are counted first. However, if listed assets aren’t sufficient to fulfill the elective share, “contributions” are taken from assets that would have gone to other beneficiaries. Florida law sets forth a hierarchy.

As a Beneficiary, Can I Do Anything about Election of a Spousal Share?

Unless the surviving spouse has waived the right to claim the elective share, it is generally available. However, interested parties do have the opportunity to object, both to the election itself and to the amount of the election.