Elective Share Overview

Florida’s Elective Share Overview

In Florida, one cannot completely disinherit their spouse.  The right to a surviving spouse’s estate is called the elective share, which is thirty percent (30%) of the decedent-spouse’s estate.  Fla. Stat. 732.2065.  Indeed, a decedent’s surviving spouse is entitled to four different rights which come into play in the absence of a valid prenuptial or postnuptial agreement.  While this overview focuses on the elective share, these spousal rights include the following:

  1. Homestead rights (while this topic could be several blog articles in and of itself, homestead is generally either a life estate in the property or one-half of the value of the property if the decedent had children).  Fla. Stat. 732.401.
  2. Exempt property (generally, the decedent’s household furnishings, vehicle, etc.). Fla. Stat. 732.402.
  3. Family allowance (statutorily set value of up to $18,000). Fla. Stat. 732.403.
  4. Elective share (Fla. Stat. 732.201 et seq.).

What is part of this elective share of a decedent’s estate? The decedent’s estate includes not just the probate estate (i.e., assets in the decedent’s individual name which are distributed pursuant to the decedent’s will), but the elective estate is an “augmented estate” to also include nearly every asset the decedent owned at the time of his or her death.  The elective share statutes spell out what is included and what is excluded in that “augmented estate” calculation.  See Fla. Stat. 732.2035, 732.2045, 732.2055.

It is important to note that there is a limited time frame for a surviving spouse to claim an elective share.  The surviving spouse must make the election to take an elective share, which is a filing in the probate court, on or before the earlier of the date that is six months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney-in-fact or guardian of the property of the surviving spouse, or the date that is two years after the date of the decedent’s death. Fla. Stat. 732.2135. Filing the election to take an elective share and calculating the correct amount of such elective share is not easy. If you have a situation with a disinherited surviving spouse, or if a spouse did not receive the appropriate inheritance from decedent, then you should consult with your trusted probate lawyer