Author: WB Admin

Florida law protects surviving spouses from being disinherited. Even if a will leaves everything to the decedent’s children or a charity, the surviving spouse can take an “elective share” of the estate. 

The elective share is now at 30 percent of the deceased’s elective estate, which includes probate assets, as well as many non-probate assets, such as property held in a revocable trust, cash value of life insurance policies, joint accounts, and certain gifts made within a year of death. 

This broad definition means that spouses may claim a portion of assets that would otherwise pass outside of probate.

Who Can Elect and When

The surviving spouse must formally elect to take this share. Under Florida law, the election must be filed within six months of receiving the notice of administration of the estate or two years after death, whichever comes first. 

Failing to file by the deadline waives the right. Because the elective share may be more than what a spouse would otherwise receive under a will, it’s an important safeguard against intentional or accidental disinheritance.

How the Share Is Calculated

Florida’s elective share statute differs from common‑law dower laws because it looks at the elective estate rather than the probate estate. The elective estate includes assets in trusts, jointly held property, payable‑on‑death accounts, and certain property transferred shortly before death. 

When calculating the 30 percent share, the executor must value these assets and account for any gifts or property distributions the surviving spouse already received. If the estate lacks liquid funds, property may need to be sold to satisfy the elective share.

Practical Considerations

For couples in second marriages or with blended families, it is important to talk about the elective share. A well-drafted prenuptial agreement can waive elective share rights, but waivers must be in writing. 

At the Law Office of Wickersham & Bowers in Daytona Beach, we offer personalized estate planning services that reflect your goals and relationships. If you are creating or revising a will or have questions about the elective share after a loved one passes, our experienced team can guide you through the process. 

Call us at 386-252-3000 or complete our intake form to schedule a consultation.

When Congress doubled the federal estate and gift tax exemption in 2017, many families gained a rare planning window. That exemption, however, is scheduled to fall by half on January 1, 2026. 

For high-net-worth couples in Florida, the next two years may be the last chance to shelter millions of dollars from future estate taxes. One of the most flexible tools available is the Spousal Lifetime Access Trust (SLAT), but it comes with technical traps that must be avoided.

What a SLAT Does for Couples

A SLAT allows one spouse to transfer assets into an irrevocable trust for the benefit of the other spouse and, usually, their children. The assets and their future growth are removed from the donor spouse’s taxable estate. 

At the same time, the couple can still enjoy indirect access to the wealth through the beneficiary spouse. When designed correctly, this structure preserves today’s high exemption while providing a safety net for the family.

The Reciprocal Trust Doctrine Risk

Couples often try to “match” each other by creating two SLATs, one in each direction. If the trusts look too similar, though, the IRS may apply the reciprocal trust doctrine. Under this rule, the government can treat each spouse as if they had set up a trust for themselves, pulling the assets back into their estates. 

To reduce this risk, the two SLATs must differ in various ways, including: 

• Appointing different trustees
• Using different distribution standards
• Funding them at different times
• Giving different family members priority as beneficiaries

Gift-Splitting and Other Hidden Pitfalls

Another issue arises when couples attempt to split gifts to maximize their exemptions. Federal law allows spouses to “split” a gift to third parties, but not to each other. If the beneficiary spouse holds withdrawal rights or a power of appointment, the IRS may disallow gift-splitting entirely. 

For families in Florida, additional rules matter as well. State law restricts how homestead property can be moved into a trust without spousal consent, and the elective share statute still protects a surviving spouse’s minimum interest.

How to Protect Your Options Before 2026

At The Law Office of Wickersham & Bowers, we guide Florida families through advanced estate planning tools like SLATs and help avoid costly mistakes. If you are considering major gifts before the 2026 sunset, call us at 386-252-3000 to schedule a consultation and secure your family’s future.

Most people assume a “fair” inheritance means an equal split. Families in Florida, especially blended ones, often face situations where equal just isn’t right. For example, you could have a child who has been your caregiver for years. Or maybe you have a stepchild you consider your own, even though the law says otherwise. In such a case, rather than playing favorites, you need to ensure your plan fits the people in your life.

When Fair and Equal Don’t Match

You might have one child with a disability who will need lifelong support, while another is financially secure and debt-free. In those cases, leaving the same amount to both might actually feel unfair. 

Florida law gives you the freedom to divide assets however you want, as long as it’s in a valid will or trust. The tricky part is making sure the decision is clear enough to hold up in court and to your family.

Put It in Writing (and Make It Strong)

If you don’t put it in writing, Florida’s intestacy rules take over. That usually means equal shares to genetic and adopted children, and nothing for stepchildren unless they were adopted. That’s fine if it’s what you want. 

However, if it’s not, you need documents that spell it out. A trust can even control how and when someone gets their share. That can protect against waste, bad spending habits, or creditors.

Don’t Split the Unsplittable

A house, a small business, or even a valuable piece of land are things you can’t cut into equal pieces without a fight. Giving such an asset to one heir and balancing the others with cash or other property is often the cleaner route. 

Some families use buy-sell agreements or a right of first refusal so one person can buy out the rest at a fair price. That’s less emotional than fighting over a kitchen table.

Start the Conversation Early

Unequal inheritances tend to go over better when they don’t come as a surprise. You don’t have to give every detail, but you need to set expectations to prevent hurt feelings later. If the talk feels tense, bring in a lawyer or mediator to keep things on track.

If you’re thinking about an unequal inheritance, the Law Office of Wickersham & Bowers can help you structure it so it meets your goals and reduces the risk of conflict. Call us at (386) 252-3000 to get started.