Florida Protects Surviving Spouses with the Elective Share
- Oct 10, 2018
- 3 min read
Updated: Jul 7
Florida's Elective Share: Can You Disinherit Your Spouse?
Many people assume they are free to leave their assets to anyone they choose. While that is generally true, Florida law places important limits on your ability to disinherit your spouse.
Unless your spouse has waived his or her inheritance rights in a valid Prenuptial Agreement or Postnuptial Agreement, a surviving spouse is generally entitled to claim a portion of the deceased spouse's estate known as the elective share.
This means that even if a surviving spouse is intentionally omitted from a Will or Trust, Florida law may still allow that spouse to receive a substantial portion of the estate.
What Is the Elective Share?
The elective share equals 30% of the deceased spouse's elective estate.
Importantly, the elective estate is much broader than the probate estate. Florida law includes many assets that pass outside of probate when calculating the elective share.
What Assets Are Included?
The elective estate may include:
✓ Probate assets
✓ Revocable living trusts
✓ Joint bank accounts
✓ Pay-on-death (POD) accounts
✓ Totten Trust accounts
✓ Property owned as joint tenants with right of survivorship
✓ Property owned as tenants by the entirety (to the extent provided by law)
✓ Certain irrevocable trusts and transfers where the decedent retained significant rights
✓ Certain transfers made within one year before death
✓ Retirement accounts and pension benefits
✓ Certain life insurance interests
✓ Property passing directly to the surviving spouse
Because the elective estate reaches many non-probate assets, simply placing assets into a revocable trust or naming beneficiaries on financial accounts does not necessarily eliminate a surviving spouse's elective share rights.
How Long Does a Surviving Spouse Have to Elect?
Strict deadlines apply.
Generally, a surviving spouse must file an election to take the elective share on or before the earlier of:
Six (6) months after being served with the Notice of Administration; or
Two (2) years after the decedent's death.
In some circumstances, the court may grant a limited extension if requested before the applicable deadline expires. Missing these deadlines can permanently waive the right to claim an elective share.
What Happens If There Is Not Enough Property in the Probate Estate?
If the probate estate does not contain sufficient assets to satisfy the elective share, Florida law allows the court to seek contributions from recipients of other property included in the elective estate.
Depending on the circumstances, beneficiaries who received assets outside of probate—including certain trust beneficiaries and recipients of jointly owned property—may be required to contribute toward satisfying the surviving spouse's elective share.
Proper Planning Can Prevent Expensive Litigation
The elective share is one of the most misunderstood areas of Florida estate planning.
Attempting to disinherit a spouse without understanding Florida's elective share laws can lead to expensive probate litigation, delays in estate administration, and unexpected results that are contrary to the decedent's wishes.
Likewise, surviving spouses who believe they were unfairly excluded from an estate should seek legal advice immediately, as the right to claim an elective share is subject to strict deadlines.
Whether you are planning your estate or administering the estate of a loved one, understanding the elective share can help protect your family's interests and avoid unnecessary disputes.
Schedule a Consultation
If you have questions about Florida's elective share laws, estate planning, probate administration, or surviving spouse rights, contact Kaney Law. We help clients throughout Florida protect their families through thoughtful estate planning and represent beneficiaries, personal representatives, and surviving spouses in probate litigation.
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