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Understanding Your Spousal Rights Under Florida’s Elective Share Law

photo of divorce decreeIn the state of Florida, you cannot completely disinherit your spouse. The “Elective Share” provisions (Part II of Ch. 732, Florida Statutes) is designed to protect a surviving spouse from spousal impoverishment because a cruel or vindictive spouse left their entire estate to others.


Here are answers to some of the most frequently-asked questions we hear about the elective share:

What is The Elective Share?

The elective share – the amount an otherwise-disinherited spouse can claim – is 30 percent of the elective estate.

In years past, the elective estate was only those assets that passed through the probate estate, excluding things that passed to others through trusts, through joint tenancy or by beneficiary designation. Under current Florida law, however, the elective estate now includes the following assets:

  • Pay on death beneficiary designations
  • Transfer on death beneficiary designations
  • “In trust for” account designations
  • Joint account assets
  • One-half of assets owned as tenants by the entirety
  • Assets inside revocable trusts
  • The cash surrender value of life insurance policies, valued immediately before the date of death
  • Pension plan assets valued immediately before the of death
  • Property transferred to others within one year leading up to the date of death

What Assets are Not Included in the Elective Share?

There are some assets that are specifically excluded from the elective share. Those include property irrevocably transferred before the date of the current law, or before the date of the marriage to the surviving spouse; transfers made with the written consent of the surviving spouse, life insurance policy proceeds beyond the cash value, court-ordered insurance policies, property in a special needs trust, the protected homestead, and the deceased spouse’s interest in community property.

What if The Surviving Spouse Lacks the Capacity to Claim Under the Elective Share?

If the surviving spouse is not able to claim the elective share due to incapacity or incompetence, it can be claimed on his or her behalf by an agent under a valid power of attorney or by a guardian, with approval of Florida courts. 

Are There Time Limits to Claim the Elective Share? 

Yes, the surviving spouse must file an election to claim the elective share “on or before the earlier of the date that is 6 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 2 years after the date of the decedent’s death.” Florida Statute §732.2135(1).

A petition for an extension of time to make an elective share may be filed with the court, if needed.

Can the Elective Share be Waived by Agreement?

Yes. Spouses can agree to waive the elective share through a valid prenuptial or postnuptial agreement. 

What Happens if Payment of an Elective Share is Delayed?

Payment of an elective share to the surviving spouse may be delayed for years, especially if litigation is involved, as of July 1, 2017 the law was amended to provide some protection against such delays and states that “any amount of the elective share not satisfied within 2 years of the date of death of the decedent shall bear interest at the statutory rate until fully satisfied, even if an order of contribution has not yet been entered. Contributions shall bear interest at the statutory rate beginning 90 days after the order of contribution.”  Florida Statute §732.2145(1).

Example of How the Elective Share Works

Let’s look at an example that might help illustrate how the elective share works:

Chris has an elective estate of $1.5 million when he dies. His wife, Amy, was named as the beneficiary of Chris’ $600,000 retirement plan account, but he left the rest of the assets to his children and charitable organizations. Because the amount Amy received was more than 30% of the elective estate, Amy cannot receive more by claiming the elective estate.

Using the same example, let’s assume that Chris only left Amy $300,000 of the retirement account. In that case, she could claim the elective share, and she could receive an additional $150,000 (up to a total of $450,000, which equals 30 percent of the total elective estate of $1.5 million.)

Choose The Judy-Ann Smith Law Firm

Married people working on their estate planning strategies should contact an experienced, knowledgeable Florida estate planning attorney. The elective share can be an important consideration in certain circumstances to help structure an inheritance for a surviving spouse and other beneficiaries. It is important to consider the possible implications of various estate planning decisions.

At The Judy-Ann Smith Law Firm, we can help you understand how the Florida elective share might impact your estate plan, and we can help you understand your rights under the law as a surviving spouse. To learn more and to schedule an initial consultation, contact us online or call us at (904) 562-1369.