If your spouse’s will leaves you little or nothing, you may still be able to claim a share of their estate. A Florida probate lawyer can help you identify which assets count, review what you already receive, and confirm your filing deadline.
If you’re planning for a second marriage, the elective share can affect how you provide for your spouse and children from an earlier relationship.
What Is the Florida Elective Share?
The Florida elective share equals 30 percent of the elective estate. The elective estate can include assets that pass outside probate, such as certain jointly owned accounts and assets in a revocable trust.
The right generally applies when the deceased spouse is domiciled in Florida at the time of death. To claim the share, the surviving spouse must make an election. Property already passing to the spouse may count toward the amount due.
Can a Spouse Be Disinherited in Florida?
Florida limits when you can disinherit a spouse. A surviving spouse can generally claim the elective share even if the will leaves them nothing. A valid waiver, such as one in a prenuptial agreement, can give up that right. Separate Florida homestead rules may also affect what happens to the family home.
What Counts in the Florida Elective Estate
The Florida elective estate can include property that passes through probate and property that transfers outside it. Depending on how the assets are owned and transferred, the calculation may include:
- Probate assets, including property that passes under a will
- Protected homestead property, subject to special rules
- Certain payable-on-death and transfer-on-death accounts
- The deceased spouse’s interest in certain jointly owned property and accounts
- Assets held in a revocable living trust
- Certain retirement, pension, and deferred compensation benefits
- The deceased spouse’s interest in the net cash surrender value of a life insurance policy
- Certain gifts and other transfers made within one year before death
Assets held in a revocable living trust can count even when they pass outside probate. The same can be true of a brokerage account that names children as beneficiaries. When comparing revocable and irrevocable trusts, consider what rights the person creating the trust keeps. Those rights can affect whether the assets count.
A Simple Elective Share Calculation
Suppose the elective estate is worth $1 million. The elective share is 30 percent, or $300,000. The will leaves $50,000 to the surviving spouse and the rest to children from a prior marriage.
Assume the full $50,000 counts toward the elective share and the spouse receives no other property that qualifies for a credit. That leaves a $250,000 shortfall. Florida’s payment rules determine which assets cover the balance and in what order.
How to Claim the Elective Share in Probate
A surviving spouse claims the elective share by filing a written election in the probate proceeding. Under Florida’s elective-share filing rules, the deadline generally falls on the earlier of these two dates:
- Six months after service of the notice of administration on the spouse, their attorney-in-fact, or their guardian of the property.
- Two years after the spouse’s date of death.
A court can grant more time for good cause. A proceeding that affects what the spouse receives may change the window to request an extension. The request still must be filed within two years of the death.
Even if the probate process is still underway, the election deadline can pass. Bring the notice of administration and its service date to your attorney so they can confirm when you need to act.
When Someone Else Can Make the Election
An attorney-in-fact or guardian of the property can make the election on the surviving spouse’s behalf with court approval. The court considers whether the election serves the spouse’s best interests. If someone acts for you, bring the power of attorney or guardianship order to the consultation along with the probate notice.
Is Taking the Elective Share Worth It?
Start by comparing the elective share with the value of what you already receive. If qualifying transfers cover the full share, filing an election may yield no additional property.
When weighing an election, consider how much you stand to receive, how soon you can access it, and what a dispute may cost. The value Florida credits toward your share can differ from the value of the assets held for you in trust.
How Trust Property Counts Toward the Elective Share
Florida’s trust valuation rules credit 50, 80, or 100 percent of the principal held in a qualifying elective share trust. The percentage depends on the rights the trust gives you:
- 50 percent if the trust meets the basic requirements and neither higher tier applies.
- 80 percent if you or the trustee can use principal for your health, support, and maintenance under a qualifying power.
- 100 percent if the trust includes that qualifying power and gives you a qualifying right to direct where the property goes.
For example, $200,000 held in a qualifying trust at the 50 percent tier counts as $100,000 toward your elective share. The credit affects how much of the share remains to be paid. Your right to use trust funds still depends on the trust’s terms.
You may also have separate surviving spouse rights, including rights to exempt property and a family allowance.
Prenuptial Agreements and the Elective Share
A spouse can waive all or part of the elective share through a written waiver that meets Florida’s requirements. A Florida resident signing the waiver must generally sign in the presence of two witnesses. A waiver signed by a nonresident may qualify under the law where they sign it.
Timing affects what each spouse must disclose. For an elective-share waiver signed after marriage, each spouse must fairly disclose their estate to the other. Florida’s elective-share waiver statute requires fair disclosure for agreements signed after marriage. A waiver signed before marriage has no disclosure requirement under that statute.
If you have a prenuptial or postnuptial agreement, review which rights it covers before relying on it in your estate plan.
Planning for Children From Prior Relationships
Start with what you want each person to receive. You might want your spouse to have income for life and your children to receive the remaining trust assets. The elective share can affect how much ultimately passes to your children, even when you name them directly on certain accounts.
Review these decisions together:
- Waivers. Decide whether a full or partial waiver fits the plan you and your spouse want.
- Trust terms. Specify what your spouse can receive during their lifetime and who receives the remaining assets.
- Insurance and accounts. Review policy ownership and beneficiary designations alongside the will and trust. Certain assets can count toward the elective estate even when they pass outside probate.
- The family home. Check how Florida homestead rules affect who can receive the home and what rights your spouse may have.
Lulich & Attorneys can review those arrangements together and help you see where your plan may fall short of what you intend for your spouse or children.
What the Florida Elective Share Means for Families
If you’re deciding whether to claim the elective share, bring the will, any trust documents, and the notice of administration to a Florida probate lawyer. We can confirm your filing deadline and help you estimate what you may receive after accounting for assets already passing to you.
If you’re planning for a blended family, a Florida estate planning lawyer can review how your will, trust, and beneficiary designations work together. If you divide your time between states, review your domicile and residence as part of that planning. Where you are legally domiciled at death affects whether Florida’s elective-share rules apply.
Contact Lulich & Attorneys to review a potential claim or plan for what your spouse and children may receive.
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