Florida Elective Share and Heirs’ Rights Explained by a Florida Probate Attorney

Understanding the rights of heirs and the elective share of a surviving spouse under Florida law is critical, whether you’re preparing an estate plan or responding to the loss of a loved one. Probate in Florida isn’t just a formality; it’s a legal process governed by detailed statutes and hard deadlines.

At Lorenzo Law, our Florida probate attorneys regularly represent surviving spouses, disinherited heirs, and personal representatives navigating these high-stakes issues. Understanding the Florida Elective Share is essential for ensuring that rights are upheld during the probate process.

Understanding surviving spouse rights in Florida is essential when navigating elective share claims and homestead entitlements. Many families are unaware of the powerful protections provided under surviving spouse rights in Florida. Disputes often arise when surviving spouse rights in Florida are overlooked or intentionally bypassed through estate planning.

What Is the Elective Share in Florida?

Florida’s Florida Elective Share statute protects a surviving spouse from being completely disinherited, even if a will or trust says otherwise. The Florida Elective Share guarantees that a spouse receives a fair portion of the estate. Under Fla. Stat. § 732.201, a surviving spouse is entitled to 30% of the elective estate, regardless of what the decedent’s will provides.

Purpose of the Elective Share

Prevents intentional or accidental disinheritance of a spouse
Ensures financial security for surviving spouses
Balances testamentary freedom with spousal rights

This statutory right applies automatically unless waived by a valid prenuptial or postnuptial agreement. Hiring a Florida probate lawyer is critical to preserve and assert surviving spouse rights in Florida during estate administration.

What Is Included in the Florida Elective Estate?

The Florida Elective Estate encompasses far more than just probate assets. It is specifically structured to prevent spouses from being completely disinherited through clever estate planning tactics, such as trusts, payable-on-death accounts, or lifetime transfers. Fla. Stat. § 732.2035 lays out exactly what gets swept into the elective estate calculation when a surviving spouse claims the elective share.

Understanding what constitutes the Florida Elective Share is crucial for survivors and heirs alike. The Florida Elective Share includes various assets that are typically thought to be excluded from standard inheritance. Below is a breakdown of each category of property that enters into the elective estate.

1. Probate Estate

All assets passing through the decedent’s will or intestacy are included. This forms the base layer of the elective estate.

2. Protected Homestead

Even though Florida homestead is typically exempt from creditors and protected from devise in certain circumstances, the decedent’s interest in protected homestead is still included in the elective estate calculation.

3. Non-Probate Accounts and Securities

This includes:

Pay-on-Death (POD) accounts
Transfer-on-Death (TOD) accounts
“In Trust For” (ITF) accounts
Joint accounts with right of survivorship
Tenancy by the entirety (only ½ value is included)

The decedent’s ownership interest means what they could withdraw or use without anyone else’s consent.

4. Jointly Held Property (Non-Account Assets)

For jointly owned real estate or other property not covered above:

Only the decedent’s fractional share is included (e.g., 50% if two joint tenants).

5. Revocable Transfers

Any property interest the decedent could revoke alone or with someone else is included.

Example: Revocable trusts fall here, unless all beneficiaries had to consent to revoke—then it’s excluded.

6. Lifetime Transfers Where the Decedent Retained Benefits

This includes trusts and arrangements where:

The decedent retained the right to use or enjoy income/principal, or
A third party (not the spouse) could distribute funds to the decedent at their discretion.

Key carve-outs:

If the decedent needed unanimous consent to access funds, or
If distributions required a general power of appointment held by someone else, or
If the right was contingent and didn’t occur before death,
then the asset is not included.

7. Life Insurance – Cash Surrender Value

The net cash surrender value of life insurance policies on the decedent’s life, immediately before death, is included.

8. Retirement Accounts, Pensions, Deferred Compensation Plans

Includes:

Defined contribution plans (401(k)s, etc.)
Other employer-sponsored retirement accounts
Excludes Social Security and Railroad Retirement benefits

⚠️ Only the non-insurance portion of defined contribution plans is included.

9. Certain Lifetime Gifts Made Within One Year of Death

These transfers are pulled back in if:

They terminated a right under § 732.2035(5) or (6), or
The transfer wasn’t excluded under federal gift tax law (e.g., large last-minute gifts to friends or new spouses)

Exceptions:

Transfers for qualified medical or educational expenses
The annual gift tax exclusion amount to each donee under IRS § 2503(b) or (c)

Intentional avoidance via trust termination or death-triggered distributions can be challenged under this subsection.

10. Property Transferred to Satisfy the Elective Share

If assets were given to the surviving spouse during life or by will/trust to satisfy the elective share, they are still counted, but offset against the final elective share entitlement.

Strategic Application in High-Net-Worth Estates

High-asset decedents often attempt to shelter wealth through irrevocable trusts, business interests, or “last-minute” asset movements to defeat elective share rights. Section 732.2035 aggressively counters that by dragging in:

Trusts where the decedent retained benefits
Joint accounts with survivorship designations
Recent lifetime transfers that mimic deathbed planning
Life insurance cash value and retirement accounts
Estate plans should be drafted with full knowledge of surviving spouse rights in Florida to avoid unintended litigation.
In blended families, surviving spouse rights in Florida are critical to balancing spousal and heir interests.
Estate planning should always consider surviving spouse rights in Florida to avoid unintended disinheritance.
A Florida probate attorney can help you understand how surviving spouse rights in Florida apply to your situation.

Why It Matters

Understanding the true scope of the Florida elective estate is critical when advising:

Surviving spouses seeking to exercise their rights
Heirs or beneficiaries seeking to preserve their inheritances
Litigants alleging that the decedent attempted to sidestep marital rights

The elective estate ensures that spouses cannot be written out of the estate through clever asset structuring.

A Florida probate litigation attorney can identify, trace, and legally recover these assets. This includes issuing subpoenas for trust documents, financial records, and annuity statements to determine inclusion under § 732.2035.

How Is the Elective Share Calculated?

The calculation process includes:

Identifying all assets in the elective estate
Valuing those assets as of the date of death
Subtracting valid debts, expenses, and property interests excluded by law
Applying the 30% formula

If the total value of assets going to the spouse (via will, trust, joint ownership, etc.) is less than 30%, the surviving spouse may file for the elective share to claim the difference.

How to File for the Elective Share in Florida

Deadline Matters

Under 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

Missing this deadline can permanently forfeit the spouse’s rights.

Filing Requirements

File an Election to Take Elective Share with the probate court
Serve copies on the personal representative and all interested parties
Consider filing a Petition to Determine Amount of Elective Share

If the personal representative doesn’t satisfy the elective share voluntarily, court intervention will be necessary. Probate courts strictly enforce deadlines related to surviving spouse rights in Florida, especially for elective share elections.

What If the Spouse Waived the Elective Share?

Elective share rights may be voluntarily waived in writing. For a waiver to be valid:

Strategically navigating the Florida Elective Share can significantly impact inheritance rights. Knowing the rules surrounding the Florida Elective Share can aid in effective estate planning.

It must be in writing
Signed by both parties
Executed voluntarily with full disclosure
Typically part of a prenup or postnup agreement

A Florida court may strike down an elective share waiver if it was procured by fraud, duress, or without adequate financial disclosure. Waivers of surviving spouse rights in Florida must be clear, voluntary, and legally enforceable under Florida law.

Rights of Heirs in Florida

Florida law provides specific inheritance rights when someone dies with or without a will.

If There Is a Valid Will

Heirs named in the will (often called beneficiaries) will inherit according to its terms. However, even then:

Many individuals overlook the implications of the Florida Elective Share in their estate plans. Properly calculating the Florida Elective Share involves multiple factors that must be considered.

The surviving spouse may elect to take the elective share
Heirs may challenge the will’s validity (fraud, undue influence, lack of capacity)

If There Is No Will (Intestate)

Under Florida’s intestacy statutes (Fla. Stat. § 732.101 et seq.):

Surviving spouse receives all or part, depending on family structure
Children inherit in equal shares if no spouse survives
If no spouse or children, then assets pass to parents, siblings, etc.

Here’s a breakdown:

Survived By	Inheritance Rule
Spouse only, no children	Spouse gets all
Spouse + mutual children	Spouse gets all
Spouse + decedent’s children from another relationship	Spouse gets 50%, children split 50%
No spouse, children only	Children inherit all
No spouse, no children	Parents, then siblings

Surviving spouse rights in Florida are especially important when dealing with large estates and blended families.

Common Conflicts in Elective Share and Heir Rights

1. Disinherited Spouses

A spouse discovers they’ve been excluded from the will or trust. Despite this, they have a right to claim the elective share unless they waived it.

2. Undisclosed Assets

Personal representatives may fail to account for non-probate assets like revocable trusts or POD accounts.

3. Will Contests by Heirs

Heirs challenge the will due to:

Lack of capacity
Undue influence by the surviving spouse or others
Improper execution

4. Family Conflict and Stepparent Dynamics

Common in blended families where surviving spouses and adult children clash over who gets what. Spouses should be aware of their rights to claim the Florida Elective Share after the passing of a loved one. A Florida probate lawyer can help enforce surviving spouse rights in Florida against stepchildren or hostile beneficiaries.

Elective Share vs. Homestead Rights in Florida

When a loved one passes away in Florida, surviving spouses and heirs must understand the distinct legal protections available to them. Two of the most significant rights are the Florida Elective Share and Florida Homestead Rights. While they are often discussed together, they arise from different statutes and serve different purposes.

These protections are not mutually exclusive. In fact, a surviving spouse may be entitled to both. Working with a knowledgeable Florida Probate Attorney is essential to maximizing entitlements and protecting family property from improper distributions or creditor claims.

Homestead protections are a key component of surviving spouse rights in Florida and prevent the forced sale of the family home. When a decedent leaves a homestead, the surviving spouse rights in Florida ensure continued occupancy or shared ownership.

The Florida Elective Share: A Financial Floor for Spouses

Under Fla. Stat. § 732.201, a surviving spouse is entitled to claim an elective share—equal to 30% of the elective estate. This is a statutory right designed to prevent a spouse from being completely disinherited. It overrides the will, trust, or beneficiary designations in many cases and pulls in assets beyond the probate estate.

The Florida Elective Share applies to:

Probate assets
Revocable trusts
Joint accounts
Pay-on-death designations
Certain retirement accounts
Life insurance (cash surrender value)
Gifts made within one year of death

In short, if the decedent attempted to transfer assets out of reach through estate planning tactics, a Florida Probate Lawyer can help you claw them back into the elective estate.

This right is strictly time-sensitive: the surviving spouse must file an election within six months of receiving the Notice of Administration, or within two years of death, whichever is earlier. Filing late or failing to trace hidden assets can lead to serious financial loss.

Florida Homestead Rights: Property Protection for Spouses and Heirs

Florida’s homestead laws, codified in Fla. Stat. § 732.401, provide a separate layer of protection for the decedent’s primary residence. If the decedent owned a home used as their permanent residence, the surviving spouse is entitled to:

A life estate in the homestead, with the remainder to the decedent’s descendants, or
A 50% interest in the homestead as tenants in common (if the spouse makes an election within six months)

In addition to possession, Florida’s homestead laws include:

Exemption from forced sale by most creditors
Restrictions on transfer or devise that conflict with spousal rights
Rights to continued residence, regardless of what the will or trust states

These protections apply automatically, but they can be waived through a valid prenuptial or postnuptial agreement. If the waiver is improper, a skilled Florida Probate Attorney can help set it aside.

Why You Need Legal Counsel to Maximize Both

Navigating the Florida Elective Share and homestead protections requires detailed statutory analysis and strict compliance with procedural deadlines. A seasoned Florida Probate Lawyer will:

Evaluate your entitlement under both laws
File timely elections and waivers
Identify and recover non-probate assets
Ensure your continued right to reside in the homestead
Litigate disputes over improper waivers or hidden transfers

For surviving spouse rights in Florida, it’s not just about what you’re entitled to—it’s about enforcing it properly. The rights of heirs in Florida can be complex, especially when estate planning instruments are used to bypass family entitlements.

Conclusion:

If you’re facing the loss of a spouse or parent and unsure of your inheritance rights, don’t rely on assumptions. Contact a trusted Florida Probate Lawyer who understands both the Florida Elective Share and Florida homestead laws. With the right strategy, you can assert your full rights and prevent unfair estate outcomes.

Florida Statutes That Matter

§ 732.201–732.2155 – Elective Share Statutes
§ 732.401–732.4015 – Homestead rights
§ 732.101–732.111 – Intestacy laws
§ 733.212 – Notice of Administration

These laws are complex. Court decisions interpreting them shift frequently. Rely on legal counsel, not just Google. A skilled probate litigation attorney will aggressively defend surviving spouse rights in Florida during estate disputes.

Can Elective Share Be Taken from a Trust?

Yes. Even assets in revocable living trusts can be included in the elective estate under Fla. Stat. § 732.2035(2). Many assume trusts are “untouchable,” but the elective share reaches beyond the probate estate.

A spouse may even seek to invalidate trust transfers made in bad faith or designed to strip elective share rights.

What Happens After Filing an Elective Share?

Once filed:

The personal representative must prepare a complete inventory of elective estate assets.
Any interested person (e.g., children, beneficiaries) can object.
The court may hold hearings, especially if the valuation is disputed.
Ultimately, a court order determines and enforces the share.

Distribution can occur through:

Direct property transfers
Court-ordered sale of assets
Equalization payments

Elective Share Trusts and Deferrals

Florida allows the use of elective share trusts to satisfy the elective share without liquidating the estate. The requirements include:

Qualified income interest to spouse for life
Remainder to other beneficiaries after spouse dies
Must meet IRS standards

This may be appropriate in complex estates or when liquidity is an issue.

Protecting Your Rights as a Surviving Spouse or Heir

Don’t wait. Every day matters when probate is involved. To protect your rights:

Act quickly to preserve deadlines
Gather all estate documents, including wills and trusts
Avoid informal agreements with other heirs or family members
Speak with a Florida probate lawyer immediately
Navigating surviving spouse rights in Florida requires careful review of prenuptial agreements and estate planning documents.
If you’re left out of the will, surviving spouse rights in Florida may still guarantee you a share of the estate.
Failure to understand surviving spouse rights in Florida can result in the loss of valuable estate benefits.

At Lorenzo Law, we handle elective share claims, will contests, and intestate disputes across South Florida.

When You Need a Florida Probate Litigation Attorney

Not all probate matters are straightforward. In high-conflict cases—such as disinheritance, concealed assets, undue influence, or challenges to a prenuptial waiver—routine estate administration won’t protect your rights. You need a seasoned Florida Probate Litigation Attorney to step in and fight for what’s legally yours.

Whether you’re a surviving spouse unjustly excluded from the estate, or an heir defending your inheritance from manipulation or abuse, litigation may be your only path to justice. A knowledgeable Florida Probate Lawyer can investigate, file suit, and present evidence to ensure a fair distribution of the estate under Florida law.

Elective Share Disputes: Asserting Surviving Spouse Rights in Florida

The Florida Elective Share is a powerful legal tool designed to protect surviving spouses from disinheritance. Unfortunately, many decedents try to circumvent this law through revocable trusts, lifetime transfers, or pressure to sign waivers. If you’re a spouse who has been left out of the will or trust, or were convinced to sign away your rights, you may still be entitled to 30% of the elective estate under Fla. Stat. § 732.201.

An experienced Florida Probate Attorney can:

File the elective share election within the statutory deadline
Challenge invalid waivers in court
Analyze trusts, annuities, and transfers to locate hidden elective estate assets
Litigate for proper valuation and inclusion of non-probate property
Secure your rightful 30% distribution, even if the will says otherwise

Without a skilled Florida Probate Lawyer, critical deadlines can be missed and hidden assets left undiscovered. Surviving Spouse Rights in Florida require aggressive enforcement in contested estates.

Rights of Heirs in Florida: Protecting Disinherited Children and Family Members

Even if you’re not a surviving spouse, you may still have standing as an heir under Florida intestate succession laws. If you were wrongfully excluded from the will or believe the estate plan was manipulated—through undue influence, lack of capacity, or fraud—you need a Florida Probate Litigation Attorney who understands how to unravel the truth.

We help heirs:

Contest suspicious wills and trusts
Subpoena documents and conduct depositions to reveal wrongdoing
Object to fraudulent waivers or forged documents
Trace asset transfers made to evade heirship rights
Enforce rightful inheritance distributions

The Rights of Heirs in Florida are not automatic—they must be preserved through prompt legal action. Delaying can mean forfeiting claims altogether.

Why Hire a Florida Probate Litigation Attorney?

Probate litigation is fact-intensive, deadline-driven, and often highly emotional. You need more than a document drafter—you need a courtroom advocate who will:

File detailed probate pleadings and objections
Pursue aggressive discovery on concealed assets
Defend or oppose elective share elections
Challenge waivers based on fraud or lack of disclosure
Represent you at mediation, hearings, and trial

A veteran Florida Probate Lawyer brings experience, procedural knowledge, and strategic skill to these disputes. Whether you’re fighting for your share of the estate or defending against baseless claims, your outcome hinges on experienced representation.

Don’t navigate a complex estate fight alone. Contact a Florida Probate Attorney who specializes in litigation to protect your surviving your rights.

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.e your rights.

Frequently Asked Questions About the Florida Elective Share

What is the Florida Elective Share?

The Florida Elective Share is a statutory protection for surviving spouses, ensuring they receive a minimum share of the decedent’s estate—even if the deceased tried to disinherit them. Under Fla. Stat. § 732.201, the elective share entitles the surviving spouse to claim 30% of the “elective estate,” which is a broader pool than just the probate estate.

This law reflects Florida’s strong public policy of protecting surviving spouses from being cut off entirely, particularly in high-net-worth cases where assets may have been moved to trusts or joint accounts in an attempt to bypass probate. Whether or not the will includes the spouse, Florida probate law guarantees this elective share—unless validly waived.

If you’re a surviving spouse facing disinheritance, a qualified Florida Probate Lawyer can evaluate whether a Florida Elective Share claim is appropriate and help recover the assets to which you are legally entitled.

What is included in the Florida Elective Estate?

Unlike traditional probate, the Florida Elective Estate under Fla. Stat. § 732.2035 includes a wide array of non-probate assets such as:

Probate property
Homestead interests
Revocable trusts
Pay-on-death and transfer-on-death accounts
Joint accounts and jointly held real property
Life insurance (cash surrender value)
Certain retirement and pension accounts
Gifts made within one year of death
Any property interest where the decedent retained control, income rights, or discretionary access

These provisions are designed to prevent spouses from being unfairly excluded from major estate assets. A Florida Probate Attorney can analyze asset structures to determine whether they fall within the elective estate and assist with legal proceedings to secure your surviving spouse rights in Florida.

Can the elective share be waived in Florida?

Yes. The Florida Elective Share can be waived if the waiver is made voluntarily and in compliance with Florida law. This typically occurs through:

Prenuptial agreements
Postnuptial agreements
Waivers signed during estate planning

According to Fla. Stat. § 732.702, a valid waiver must be:

In writing;
Signed by both parties;
Executed voluntarily and without fraud or duress; and
Based on fair disclosure of assets, unless the right to disclosure was waived.

If you’re dealing with a potentially invalid waiver or feel pressured into signing one, consult a Florida Probate Lawyer immediately. A skilled Florida Probate Attorney can review whether the waiver complies with Florida law or can be challenged.

How long do I have to claim an elective share in Florida?

Timing is critical. To claim the Florida Elective Share, the surviving spouse must file an election with the court:

Within 6 months of receiving the Notice of Administration; or
Within 2 years of the decedent’s death, whichever comes first

Failure to file within these time limits may result in a complete loss of the right to claim the elective share. An experienced Florida Probate Attorney will ensure your election is filed properly and within the statutory timeframe.

Are trusts included in the elective estate?

Yes. One of the most misunderstood aspects of Florida probate law is the inclusion of revocable trusts and other non-probate transfers in the elective estate. If a decedent moved most of their assets into a revocable trust or transferred them into joint accounts, those do not automatically escape elective share claims.

Under Fla. Stat. § 732.2035(5) and (6), the following trust interests may be included:

Revocable trusts
Irrevocable trusts where the decedent retained a right to income or principal
Trusts where a third party (not the spouse) had discretion to distribute to the decedent
Trust distributions made within one year of death

A Florida Probate Lawyer can analyze trust documents and asset transfers to determine whether these assets must be counted toward the elective estate.

What happens if I was disinherited as a surviving spouse in Florida?

If you were excluded from the will, that does not necessarily mean you are left with nothing. Thanks to Florida’s elective share law, you are still entitled to 30% of the elective estate unless you waived that right through a valid agreement.

Moreover, if a will was changed under suspicious circumstances, or if undue influence or fraud was involved, you may have grounds to contest the will in court. A Florida Probate Attorney can help build a case, preserve evidence, and file the necessary pleadings to challenge the estate plan and secure your rights as a surviving spouse in Florida.

What if I was left out of the will as a child or heir?

If you are not a surviving spouse, but were still left out of a will—especially as a child, dependent, or close heir—you may still have legal options under:

Florida intestate succession laws, which apply when no valid will exists or when a will is partially defective
Elective share challenges, if the estate was manipulated to avoid spousal or familial distribution
Will contests, based on undue influence, lack of capacity, fraud, or improper execution

A Florida Probate Lawyer can help evaluate your standing, review the estate documents, and initiate litigation if your rights as an heir in Florida have been violated.

When should I contact a Florida Probate Attorney?

You should contact a Florida Probate Attorney as soon as you suspect that:

You were improperly excluded from an inheritance
Assets were hidden or transferred to avoid your elective share
You need to evaluate a prenup or postnup waiver
Deadlines for filing are approaching
The estate is large, complex, or includes multiple non-probate assets

The sooner you act, the stronger your position will be. A Florida Probate Lawyer will protect your rights, preserve your claims, and guide you through this highly technical area of Florida probate litigation.

Speak With a Florida Probate Attorney Today

Every Florida family deserves clarity and fairness when a loved one passes. If you’re facing a disinheritance issue or need to assert your rights as a surviving spouse or heir, Lorenzo Law is here to help. Our Florida probate attorneys provide strategic, aggressive representation throughout the probate and estate litigation process.

At Lorenzo Law, we emphasize the importance of understanding the Florida Elective Share to protect your rights. Clients often inquire about the Florida Elective Share and its implications during consultations.

We provide resources for understanding the Florida Elective Share and its impact on estate litigation. Understanding the Florida Elective Share is essential for anyone engaged in estate planning and probate matters. Contact our Florida Probate Attorney Today for a free consultation.