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Florida Protects Surviving Spouses

Under Florida law, you cannot intentionally disinherit your spouse unless your spouse agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement. In Florida, a surviving spouse, whether or not they were mentioned in their deceased spouse’s will, has the option to receive a portion of their deceased spouse’s estate called the “elective share". This means that the surviving spouse may choose the greater of what was provided in the will or what Florida law provides.

The elective share is equal to 30% of the deceased spouse’s “elective estate.”

The elective estate includes:

  • The decedent’s Probate Estate defined as “all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia

  • Homestead Property

  • Joint bank Accounts, Pay on Death Accounts, Totten Trusts

  • Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property)

  • Revocable Trusts

  • Certain irrevocable transfers, including transfers with retained right to income or principal or retained right to discretionary principal distributions

  • Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death)

  • Pensions and Retirement Plans

  • Transfers made within one year of decedent’s death

  • Irrevocable transfers to an Elective Share Trust

  • Property passing directly to surviving spouse

-- There are deadlines, of course! --

In order to exercise the option to take the elective share, a surviving spouse must file his or her election by the earlier of 6 months after the date the surviving spouse is served with the estate’s Letters of Administration, or 2 years after the death of the surviving spouse. You can file for an extension up to 40 days after your original filing deadline.

Bringing Assets Back Into the Estate

Beneficiaries who have received a distribution of property that is included in the elective estate, as well as “direct recipients” must give those assets back (i.e., “contribute”) to the extent necessary to satisfy an elective share shortfall.

**** Obtain the Help of a Qualified Competent Lawyer ****

If you wish to minimize how much your spouse may inherit after your death, then you should speak with an experienced estate planning and probate attorney. Also, if you are a spouse who has been disinherited, it is essential you hire a probate attorney immediately. You have a limited period of time to file for your elective share.

Contact Elan Kaney at or (386) 281-5777 if you would like to learn more about this issue or if you need representation as a surviving spouse.

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