Florida Elective Share Explained by a Florida Probate Attorney

Understanding Your Inheritance Rights in Florida Probate

Understanding the Rights of Heirs and the Elective Share of a surviving spouse under Florida law is a critical step, whether you are preparing an estate plan or navigating the Probate in Florida process after the loss of a loved one.

Probate in Florida is a complex legal process governed by detailed statutes and strict deadlines.

Florida law grants specific inheritance rights and protections to spouses, ensuring a surviving spouse cannot be completely disinherited.

At Lorenzo Law, our Florida Probate Attorney specializes in these high-stakes issues, regularly representing:

Surviving Spouses
Disinherited Heirs
Personal Representatives

Understanding the Florida Elective Share is paramount for upholding your rights.

Florida’s elective share laws provide the legal framework that secures a surviving spouse’s entitlement to a minimum portion of the estate, even when the will or trust specifies otherwise.

💰 Florida Elective Share & Elective Estate: A Guide to Surviving Spouse Rights

The Florida Elective Share is a crucial legal tool designed to protect a surviving spouse from complete disinheritance, ensuring financial security regardless of the terms in the deceased spouse’s will or trust.

Navigating these powerful surviving spouse rights in Florida is essential, especially when dealing with elective share claims and homestead entitlements in Probate in Florida.

Disputes frequently lead to estate litigation when these rights are intentionally or accidentally bypassed through complex estate planning strategies.

What is the Florida Elective Share?

The Florida Elective Share is a statutory right under Florida Statute § 732.201 that provides a mandatory minimum share of the decedent’s estate to the surviving spouse.

Guaranteed Share: The surviving spouse is legally entitled to 30% of the Elective Estate.
Override Power: This right overrides the provisions of the deceased spouse’s will or trust if they leave the spouse less than the guaranteed 30%.
Purpose: To prevent a spouse from being left destitute and to uphold the public policy that recognizes marriage as an economic partnership.
Waiver: This statutory right applies automatically unless it has been validly waived in writing, typically through a prenuptial or postnuptial agreement (nuptial agreement).

Hiring a specialized Florida Probate Lawyer is critical for asserting these powerful surviving spouse rights in Florida during the estate administration process.

🔎 The Florida Elective Estate: Assets Included

The Florida Elective Estate is the specific pool of assets used for calculating the 30% elective share.

Defined by Florida Statute § 732.2035, it is deliberately broader than the traditional Probate Estate to prevent the disinheritance of a spouse using non-probate assets or transfers.

Understanding what constitutes the decedent’s elective estate is crucial for both survivors and heirs.

The Elective Estate encompasses the following key categories of property interests, valued as of the date of death:

Traditional Probate Assets
- Probate Estate: All assets passing under the decedent’s will or by intestacy (dying without a will).
Non-Probate Transfers & Accounts
- Protected Homestead: The deceased spouse’s interest in the protected homestead property is included in the elective estate calculation.
- Non-Probate Accounts & Securities: This includes accounts registered as Pay-on-Death (POD), Transfer-on-Death (TOD), In Trust For (ITF), and property held in Joint Tenancy with Right of Survivorship. For Tenancy by the Entirety, only one-half (1/2) the value is included.
- Revocable Transfers: Any property interest the decedent could revoke or amend alone or with someone else, primarily Revocable Trusts.
Assets with Retained Control or Benefits
- Lifetime Transfers with Retained Benefits: Assets transferred by the decedent where they retained the right to the income, principal, or use (e.g., certain irrevocable trusts where the decedent was a beneficiary).
- Life Insurance – Cash Surrender Value: The net cash surrender value of life insurance policies on the decedent’s life immediately before death.
- Retirement Accounts: Value of amounts payable under 401(k)s, IRAs, pensions, and other defined contribution plans (excluding Social Security/Railroad benefits).
Recent Transfers
- Certain Lifetime Gifts Made Within One Year of Death: Transfers made to terminate a right under the statute or transfers not excluded by federal gift tax law (like large last-minute gifts).
- Property Transferred to Satisfy the Elective Share: Assets given to the surviving spouse during life or by will to satisfy the elective share amount are counted in the elective estate (and then offset against the final entitlement).

The entire value of the Elective Estate is subject to a deduction for valid debts and expenses before the 30% elective share is calculated, resulting in the Net Elective Estate.

If you are a disinherited spouse, a Florida Probate Litigation Attorney can help identify and trace all these assets to enforce your rights.

💰 Strategic Application of Florida Elective Share in High-Net-Worth Estates

The Florida Elective Share laws are aggressively applied in high-net-worth estates to prevent disinheritance through sophisticated estate planning tactics.

Florida Statute § 732.2035 is the key tool used by a Florida Probate Litigation Attorney to “drag in” assets that the decedent attempted to shelter.

High-Asset Sheltering Tactics Countered by Law

High-asset decedents often attempt to defeat surviving spouse rights in Florida by moving wealth out of the traditional Probate Estate. Section 732.2035 specifically counters these maneuvers by including:

Trusts Where the Decedent Retained Benefits: Including certain irrevocable trusts or revocable trusts where the decedent retained a right to income or principal.
Joint Accounts: Assets with survivorship designations (Joint accounts with right of survivorship).
Recent Lifetime Transfers: Gifts or transfers made shortly before death that mimic deathbed planning.
Financial Assets: Life insurance cash value and retirement accounts (IRAs, 401(k)s).

In blended families, understanding and enforcing these surviving spouse rights in Florida is critical to balancing the interests of the spouse and other heirs or beneficiaries, avoiding costly estate litigation.

Nuptial agreements (prenuptial agreement or postnuptial agreement) remain an important estate planning tool to define or waive elective share rights upfront.

Why the Elective Estate Scope Matters

Understanding the true scope of the Florida Elective Estate is critical for all parties:

Surviving Spouses seeking to exercise their guaranteed rights.
Heirs or beneficiaries seeking to preserve their inheritances.
Litigants alleging the decedent attempted to sidestep marital rights.

The Elective Estate ensures that a spouse cannot be written out of the estate through clever asset structuring.

A Florida Probate Litigation Attorney can identify, trace, and legally recover concealed assets, often requiring subpoenas for financial records and trust documents to confirm inclusion under § 732.2035.

Note on Calculation: When determining the value of the Elective Estate, outstanding liabilities (valid debts and expenses) must be subtracted from the estate’s total value before calculating the final elective share.

🔢 How the Florida Elective Share is Calculated

The calculation of the Florida Elective Share follows a strict process to determine the amount the surviving spouse is owed:

Identify and Value: All assets making up the Elective Estate are identified and valued as of the date of death.
Subtract: Valid debts, administration expenses, and property interests excluded by law are deducted.
Apply Formula: The 30% formula is applied to the net value.
Offset: The value of assets the spouse already received (via will, trust, joint ownership, etc.) is offset against the 30% entitlement.

If the total value of assets received by the spouse is less than the calculated 30%, the surviving spouse may file an Elective Share Claim to receive the difference.

Certain items, like exempt property and the family allowance, may be provided in addition to the elective share.

Understanding the Probate Estate and Florida’s Elective Share Laws

What the Elective Estate Includes: Defining Spousal Rights

While the probate estate only consists of assets subject to the will or intestacy, the elective estate includes far more under Florida law.

The inclusion of other assets like joint bank accounts, property passing via beneficiary designation, and the death benefits from certain financial instruments is crucial.

These provisions under Florida’s elective share laws are designed to capture the decedent’s interest in all forms of wealth, ensuring that one spouse cannot utilize titling or contracts to unfairly disinherit the other spouse.

The law looks beyond the mere form of ownership to enforce fundamental spousal rights.

Responsibilities of the Personal Representative under Elective Share Laws

The personal representative has a primary duty to administer the estate, which includes strict compliance with Florida’s elective share laws.

This involves accurately identifying all assets that form the elective estate includes, including other assets that pass outside of probate estate (like trusts or joint bank accounts).

The representative must notify the surviving spouse of their spousal rights and, if a claim is made, ensure the 30% share is calculated accurately.

The law dictates that the elective share must be satisfied before bequests are made to other beneficiaries.

Enforcing Spousal Rights: When to Consult a Florida Probate Attorney

If you are a surviving spouse facing disinheritance, it is vital to consult with a Florida Probate Attorney.

Under Florida law, the elective share laws ensure you receive what the legislature intended to protect you in financial circumstances where you were excluded.

An attorney can analyze how the elective estate includes various asset types, such as death benefits or joint bank accounts, and litigate if necessary.

This enforcement of spousal rights is paramount, especially when facing challenges from other beneficiaries or when the personal representative fails to properly account for the decedent’s interest in all forms of property passing.

📄 Filing the Elective Share Election in Florida

The deadline matters greatly in Florida Probate. Missing the filing deadline can result in the permanent forfeiture of the surviving spouse rights in Florida.

Critical Deadlines (Fla. Stat. § 732.2135)

The elective share election must be made on or before the earlier of:

6 months after service of the Notice of Administration, or
2 years after the decedent’s death.

Filing Requirements

To properly file an elective share claim:

File an Election to Take Elective Share with the Probate Court.
Serve copies on the Personal Representative and all interested parties.
A Petition to Determine Amount of Elective Share may be filed if the matter is disputed.

Probate courts strictly enforce deadlines related to surviving spouse rights in Florida, making prompt action and compliance essential.

Court intervention is necessary if the Personal Representative does not voluntarily satisfy the elective share.

📜 Waiving the Florida Elective Share & Protecting Heir Rights

Challenging and Validating the Waiver of Elective Share

The Florida Elective Share can be voluntarily waived in writing, which is a key element in effective estate planning for many Florida couples.

For a waiver of elective share to be legally enforceable under Florida law (Fla. Stat. § 732.702):

It must be in writing and signed by both parties.
It must be executed voluntarily and with full financial disclosure (unless the right to disclosure was itself waived).
It is typically found within a prenuptial agreement or postnuptial agreement (nuptial agreement).

A Florida court may strike down an elective share waiver if it was procured by fraud, duress, or without adequate financial disclosure.

Navigating the rules surrounding the Florida Elective Share and its waiver requires strategic knowledge of surviving spouse rights in Florida and is crucial for securing inheritance rights.

🏛️ Rights of Heirs in Florida: Testate vs. Intestate Estates

Florida law provides specific inheritance rights to heirs and beneficiaries when someone passes away, with distinct rules depending on whether a valid will exists.

If There Is a Valid Will (Testate)

Heirs named as beneficiaries inherit according to the will’s terms. However, in Probate in Florida, potential conflicts remain:

The surviving spouse can still elect to take the Florida Elective Share, which may reduce the inheritance of other heirs.
Heirs may challenge the will’s validity (Will Contest) based on issues like fraud, undue influence, or lack of testamentary capacity.

If There Is No Will (Intestate)

When a person dies without a valid will (intestacy), Florida’s intestacy statutes (Fla. Stat. § 732.101 et seq.) determine the inheritance distribution among heirs based on family structure.

Survived By	Inheritance Rule (Intestate Succession)
Spouse only, no children	Surviving Spouse gets all.
Spouse + mutual children	Surviving Spouse gets all.
Spouse + decedent’s children from another relationship	Surviving Spouse gets 50%, children split 50%.
No spouse, children only	Children inherit all.
No spouse, no children	Parents, then siblings (if none, passes further down the line).

In blended families and large estates, securing surviving spouse rights in Florida is critical to resolving potential conflicts.

⚔️ Common Conflicts in Elective Share and Heir Rights

Estate litigation often arises from disputes over elective share claims and heir rights:

Disinherited Spouses: A spouse excluded from the will or trust asserts their Florida Elective Share right to 30% of the Elective Estate.
Undisclosed/Hidden Assets: The Personal Representative fails to account for non-probate assets (revocable trusts, POD accounts) in the elective estate calculation.
Will Contests by Heirs: Heirs challenge the validity of the will based on lack of capacity, undue influence by a spouse or beneficiary, or improper execution.
Family Conflict and Stepparent Dynamics: Clashes between a surviving spouse and the decedent’s adult children (or heirs) over asset distribution. A Florida Probate Lawyer is essential to enforce surviving spouse rights in Florida against hostile beneficiaries.

🏠 Elective Share vs. Homestead Rights in Florida

Both the Florida Elective Share and Florida Homestead Rights are distinct, powerful legal protections guaranteed to surviving spouses and heirs.

Working with a knowledgeable Florida Probate Attorney is essential to maximize entitlements and protect family property.

Homestead Protections

Homestead protections are a key component of surviving spouse rights in Florida. They prevent the forced sale of the family home by most creditors and restrict its devise.

When a decedent leaves a homestead, the surviving spouse rights in Florida ensure continued occupancy or shared ownership, separate from the elective share entitlement.

⚖️ Maximizing Surviving Spouse Rights in Florida: Elective Share & Homestead

The Florida Elective Share and Florida Homestead Rights are the two foundational pillars of surviving spouse rights in Florida, offering crucial financial and property protection.

Understanding both is essential for successful estate planning and aggressive probate litigation.

The Florida Elective Share: Your 30% Financial Guarantee

The Florida Elective Share (Fla. Stat. § 732.201) is a statutory right guaranteeing the surviving spouse receives a minimum share—30% of the Elective Estate.

This powerful law overrides the decedent’s will, trust, or beneficiary designations to prevent total disinheritance.

Assets Included in the Elective Estate: The Elective Share calculation is comprehensive, designed by Fla. Stat. § 732.2035 to include non-probate assets such as:

Revocable Trusts (Yes, assets in a revocable living trust are included, countering the assumption they are “untouchable”).
Joint Accounts (POD, TOD, survivorship designations).
Retirement Accounts and Life Insurance Cash Surrender Value.
Gifts made within one year of death.

A Florida Probate Lawyer is crucial to trace hidden assets and “claw back” assets the decedent attempted to transfer out of reach via estate planning tactics.

Strict Deadline: This right is highly time-sensitive. The surviving spouse must file the election with the Probate Court within six months of receiving the Notice of Administration or two years of death, whichever is earlier. Missing this deadline is a permanent loss of the claim.

Florida Homestead Rights: Property Protection

Florida Homestead Laws (Fla. Stat. § 732.401) provide a separate layer of protection for the decedent’s primary residence, protecting it from most creditors and restricting its devise.

Spouse’s Homestead Entitlement: The surviving spouse receives a life estate in the homestead with the remainder passing to the descendants, or a 50% interest as tenants in common (if elected within six months).

These rights ensure continued residence and are automatic.

Waiver of Rights: Both Elective Share and Homestead Rights can be waived through a valid prenuptial or postnuptial agreement (nuptial agreement).

If the waiver was procured by fraud, duress, or lacked proper financial disclosure, a skilled Florida Probate Attorney can challenge and seek to set it aside.

Why You Need a Florida Probate Litigation Attorney

The Florida Elective Share and Homestead laws are intertwined and complex. Estate litigation is often necessary in high-conflict cases involving disinheritance, concealed assets, undue influence, or challenges to a prenuptial waiver.

A seasoned Florida Probate Lawyer will:

File timely elections for both elective share claims and homestead.
Identify and recover non-probate assets (like assets in revocable living trusts) to maximize the Elective Estate.
Litigate disputes over asset valuation or improper transfers.
Aggressively defend surviving spouse rights in Florida and the rights of heirs in Florida against hostile beneficiaries.

Post-Filing Process: Once an Elective Share is filed, the personal representative must inventory the assets.

Interested parties (heirs, beneficiaries) may object, potentially leading to court hearings to determine the final share amount via a court order.

Crucial Florida Statutes for Inheritance Rights

Statute	Focus
§ 732.201–732.2155	Elective Share Statutes (Defining the right and calculation)
§ 732.401–732.4015	Homestead Rights (Defining the property protection)
§ 732.101–732.111	Intestacy Laws (Defining Heir distribution if no will exists)
§ 733.212	Notice of Administration (Triggers the Elective Share deadline)

❓ Frequently Asked Questions (FAQ) About the Florida Elective Share

The Florida Elective Share is the cornerstone of surviving spouse rights in Florida and makes it almost impossible to disinherit a spouse without a valid legal agreement.

This FAQ clarifies the key components of this powerful statutory protection.

Question	Answer
What is the Florida Elective Share?	The Florida Elective Share is a statutory right under Fla. Stat. § 732.201 that guarantees a surviving spouse a minimum portion of the deceased spouse’s wealth. This is 30% of the Net Elective Estate, a percentage the spouse may claim regardless of the terms of the will. This law reflects Florida’s public policy against spousal disinheritance, particularly crucial in high-net-worth cases or blended families.
How is the Elective Share Calculated?	To calculate the elective share, the estate must undergo a valuation process to determine the total value of the Elective Estate. This total value is then reduced by outstanding liabilities and expenses to establish the Net Elective Estate. The surviving spouse is entitled to 30% of this net figure. A Florida Probate Lawyer is essential to accurately perform this complex calculation.
What Assets are in the Elective Estate?	The Elective Estate is a broad pool of assets—much larger than the Probate Estate—specifically designed to defeat schemes to bypass the spouse. It includes both probate and non-probate assets, such as: property, bank accounts, retirement plans, revocable trusts, joint accounts, life insurance cash surrender value, and certain recent gifts. (See Fla. Stat. § 732.2035).
What Priority does the Elective Share take?	The surviving spouse’s elective share takes priority over most bequests to other people (heirs and beneficiaries) and various costs of administration. This means the Elective Share is generally satisfied before most other non-statutory distributions, ensuring the spouse’s claim is paid first.
Are there other spousal protections besides the Elective Share?	Yes. In addition to the Elective Share, a surviving spouse may claim: Exempt Property (e.g., household furniture up to $20,000 and vehicles), which is safeguarded from creditors’ claims and distributed in addition to the will/elective share. A Family Allowance of up to $18,000 to support them during the estate administration process.
Can a Spouse Be Disinherited in Florida?	No, not without their consent. Florida law provides that a spouse cannot be disinherited by will without a legally valid premarital or postmarital agreement (nuptial agreement) where the spouse expressly waived their elective share rights.
What if the Elective Share Claim is Contested?	If the surviving spouse’s claim for the elective share is contested by heirs or beneficiaries—often concerning asset valuation or the validity of a waiver—probate litigation can significantly delay estate distribution. An experienced Florida Probate Lawyer is needed to enforce the claim and navigate the legal challenge.

⚔️ Don’t Forfeit Your Rights under Florida Law! Contact a Florida Probate Litigation Attorney

We Aggressively Defend Surviving Spouse Rights in Miami-Dade, Broward, Palm Beach & Statewide

If you are facing a Will Contest, challenging a waiver, or believe assets were hidden to defeat the Florida Elective Share, the time to act is now.

Probate litigation is deadline-driven; delay can lead to the permanent forfeiture of your claim.

Don’t risk forfeiting your inheritance rights due to missed deadlines or complex law. Contact a Florida Probate Attorney who specializes in probate litigation immediately to protect your rights, enforce the Florida Elective Share, and secure your future.

We provide strategic legal representation for Surviving Spouse Rights in Florida and the Rights of Heirs across the major contested probate jurisdictions, including:

South Florida: Miami-Dade County, Broward County (Fort Lauderdale), and Palm Beach County (West Palm Beach).
Central Florida: Orange County (Orlando) and the Tampa Bay Area (Hillsborough/Pinellas Counties).

Don’t navigate a complex estate fight alone. Contact a Florida Probate Attorney who specializes in litigation to protect your surviving spouse rights in Florida, enforce the Florida Elective Share, and secure the rights of heirs in Florida before it’s too late.