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.
