The Florida Elective Share: 30% of the Elective Estate
A surviving spouse in Florida cannot be disinherited. Florida Statutes § 732.201 gives the surviving spouse of a person who died domiciled in Florida the right to elect a share of the estate, and § 732.2065 fixes that share at 30 percent of the elective estate. It does not matter what the will says. It does not matter that everything was moved into a trust, a joint account, or a beneficiary designation before death.
That last point is what most people get wrong. The elective share is not 30 percent of the probate estate. It is 30 percent of the elective estate, and § 732.2035 defines the elective estate to reach ten separate categories of property, most of which never go through probate at all.
There is a deadline, it is short, and missing it ends the claim. The election must be filed by the earlier of six months after service of the notice of administration or two years after the date of death.
Can you disinherit your spouse in Florida?
Practically, no. This is the question underneath almost every search that leads here, and Florida’s answer is unusually firm. A will that leaves a surviving spouse nothing does not fail — it simply does not stop the spouse from claiming the spousal elective share. The election is a statutory right that overrides the document, and it does not matter how carefully the will was drafted or how clearly the deceased meant it.
There are only three routes that actually work in Florida, and all three require the spouse’s participation or absence. A valid prenuptial or postnuptial agreement waiving the elective share. A written waiver signed after marriage that meets the statutory formalities. Or simply not being married at death. Everything else — the trust, the beneficiary designation, the transfer to a child a year before dying — runs into the elective estate rules described below, which is precisely why they exist.
What is an elective share, in plain terms?
What is an elective share: it is a surviving spouse’s right to take a fixed percentage of the deceased spouse’s property instead of whatever the will gave them. It is a choice, not an automatic entitlement — the spouse elects it, in writing, within a deadline. Florida’s version is set out in the Florida elective share statute at sections 732.201 through 732.2155, and it is deliberately broad: the elective share calculation reaches far past the probate estate into trusts, joint accounts, pay-on-death designations and certain lifetime transfers.
What Is the Florida Elective Share?
It is a statutory right of election, not a claim you have to prove. Section 732.201 provides that the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate, to be designated the elective share. You do not have to show that the will was procured by undue influence, or that the decedent lacked capacity, or that anything improper happened. The right exists because the marriage existed.
How Much Is the Elective Share in Florida?
Thirty percent of the elective estate. Section 732.2065 states it in one sentence: the elective share is an amount equal to 30 percent of the elective estate. There is no dollar floor and no ceiling — it is purely a percentage of the computed elective estate, so on a $4 million elective estate the share is $1.2 million and on a $200,000 elective estate it is $60,000.
Does Electing Reduce What You Would Otherwise Receive?
No. Section 732.201 says so expressly: the election does not reduce what the spouse receives if the election were not made, and the spouse is not treated as having predeceased the decedent. And § 732.2105 confirms the elective share is in addition to homestead, exempt property, and the allowances. Those are four separate entitlements that stack rather than substitute for one another. A spouse who elects does not forfeit the family allowance or the exempt property by doing so.
What Property Counts in the Elective Estate?
This is the heart of the statute and the reason the elective share is difficult to defeat. Section 732.2035 sweeps ten categories of property into the elective estate, and only the first is the probate estate. Emptying the probate estate before death does not empty the elective estate.
The Ten Categories Under Section 732.2035
| Category | What it captures in practice | |
|---|---|---|
| 1 | The decedent’s probate estate | Everything that passes under the will or by intestacy |
| 2 | The decedent’s interest in protected homestead | The family home, even though homestead is otherwise creditor-protected |
| 3 | Pay-on-death, transfer-on-death and in-trust-for accounts and securities, and survivorship co-ownership accounts | Bank and brokerage accounts with a named beneficiary. For tenancy by the entirety, one-half the value; otherwise the portion the decedent could withdraw without a duty to account |
| 4 | Joint tenancy with right of survivorship and tenancy by the entirety property | The decedent’s fractional interest, calculated as total value divided by the number of tenants |
| 5 | Property subject to a revocable transfer at death | The revocable living trust, which is where most planning to defeat a spouse ends up |
| 6 | Transferred property where the decedent kept the income, the use, or a discretionary right to principal | Retained-interest arrangements, subject to four statutory exclusions |
| 7 | Net cash surrender value of life insurance on the decedent’s life immediately before death | The cash value, not the death benefit |
| 8 | Pension, retirement and deferred compensation amounts payable by reason of surviving the decedent | 401(k), IRA and pension survivor benefits. Railroad Retirement Act and Social Security are excluded |
| 9 | Property transferred within one year before death | The look-back. Terminations of interests that would have been caught by categories 5 or 6, and outright transfers to anyone, subject to exceptions for direct medical and tuition payments and one annual gift tax exclusion per donee |
| 10 | Property transferred in satisfaction of the elective share | Prevents double counting of what has already been given toward the share |
Read categories 3, 4, 5, 8 and 9 together and the design becomes obvious. The Legislature anticipated the moves — retitle the accounts, fund the trust, name a different beneficiary, give it away shortly before death — and wrote each one back into the calculation.
Can a Revocable Trust Defeat the Elective Share?
No. Property subject to a revocable transfer by the decedent at the time of death is category 5 of the elective estate. A spouse who transfers everything into a revocable living trust naming the children as beneficiaries has changed how the property passes but has not removed a dollar from the elective estate. The same is true of payable-on-death designations and survivorship accounts. This is the single most common misunderstanding in second-marriage planning, and it is usually discovered after the death rather than before.
What About Gifts Made Shortly Before Death?
Category 9 is the one-year look-back, and it is broader than most people expect. It reaches property transferred within one year before death both where the transfer resulted from the termination of an interest that would otherwise have been caught by categories 5 or 6, and where it was simply a transfer to any person. There are two carve-outs: amounts qualifying under the Internal Revenue Code § 2503(e) exclusions for direct payment of medical and educational expenses, and one annual gift tax exclusion amount per donee per year. Everything above that comes back into the calculation.
When Is the Deadline to File the Elective Share Election?
The earlier of six months after service of the notice of administration, or two years after the date of death. Section 732.2135(1) sets both, and the word that matters is earlier. Once the notice of administration has been served on the surviving spouse — or on an attorney in fact or guardian of the property of the spouse — the six-month clock is the operative one, and the two-year outside limit becomes irrelevant.
Can the Deadline Be Extended?
Yes, but you have to ask before it runs. Section 732.2135(2) allows the surviving spouse, or an attorney in fact or guardian of the property, to petition for an extension within the period in subsection (1), or within 40 days after the termination of any proceeding that affects what the spouse is entitled to receive under § 732.2075(1), whichever is later — but in no event more than two years after the decedent’s death. The court may extend the time for good cause shown. Two years is the hard outer wall, and no showing of good cause reaches past it.
Can You Change Your Mind After Electing?
For a limited window. Section 732.2135(3) permits the surviving spouse, or an attorney in fact, guardian of the property, or personal representative of the spouse, to withdraw an election at any time within eight months after the decedent’s death and before the court’s order of contribution. Both conditions must hold. Once the order of contribution is entered, or once eight months have passed, the election stands.
That window matters because the value of the elective estate is often unclear at the point the election has to be made. Electing early to protect the deadline, then withdrawing if the numbers turn out badly, is a legitimate and sometimes necessary strategy — but only inside eight months.
Where the Money Actually Comes From
Section 732.2075 sets the sources and the order, and it works in steps. Understanding the order matters because it determines who ends up writing the cheque — and, in a contested estate, who is going to fight.
The Order of Contribution Under Section 732.2075
Applied first are property interests already coming to the surviving spouse: elective estate property passing to or for the spouse’s benefit, retirement and deferred compensation amounts under category 8 paid to or for the spouse, the decedent’s one-half of community property act property paid to or for the spouse, proceeds of life insurance owned by anyone other than the spouse to the extent paid for the spouse’s benefit, property held for the spouse in a qualifying special needs trust, and property that would have satisfied the share under any of those but was disclaimed.
In other words, the spouse’s 30 percent is first satisfied out of what the spouse is already receiving. Only the shortfall is collected from anyone else.
If a shortfall remains, it is collected in class order: Class 1, the decedent’s probate estate and revocable trusts; Class 2, recipients of property under categories 3, 4 and 7, and under categories 6 and 8 where the decedent had the power to designate the recipient; Class 3, recipients of all other elective estate property. Protected charitable interests are excluded from Classes 2 and 3.
If it is still unsatisfied, contribution comes from property passing in trust in which the surviving spouse has a beneficial interest, other than an elective share trust or a qualifying special needs trust. And finally, from direct recipients of protected charitable lead interests, but only to the extent and at the times contribution is possible without disqualifying the charitable deduction.
All of this yields to the will. The opening words of § 732.2075 are “unless otherwise provided in the decedent’s will or, in the absence of a provision in the decedent’s will, in a trust referred to in the decedent’s will” — so a well-drafted will can redirect where the burden falls, even though it cannot eliminate the share.
How Is the Elective Share Valued?
Section 732.2095 governs valuation, and two of its rules change outcomes more than anything else in the statute.
The general rule is fair market value on the applicable valuation date, and the applicable date varies: date of death for transfers in satisfaction of the share and for property in a qualifying special needs trust at death; date of transfer for property irrevocably transferred to the spouse during life; date of distribution for property distributed by the personal representative; and the date or dates the trust is funded for property passing in trust for the spouse.
The One-Half Rule for Life Interests
Where the surviving spouse has a life interest in property not in trust — including a life estate in protected homestead under § 732.401(1) — the value of the spouse’s interest is one-half of the value of the property on the applicable valuation date. The same one-half figure applies where the spouse has elected the undivided one-half tenancy in common in the homestead under § 732.401(2).
The practical consequence is that a homestead life estate credited against the elective share counts for half the home’s value, not all of it and not an actuarial figure based on the spouse’s age. That is a fixed rule, and it makes the arithmetic predictable in a way most states’ law does not.
The 100 / 80 / 50 Rule for Elective Share Trusts
Where the share is satisfied by putting property in trust for the spouse rather than outright, § 732.2095(2)(d) grades the trust. An elective share trust requires that the spouse be entitled for life to the use of the property or to all the income payable at least annually, and that the spouse have the right to require the trustee to make the property productive or convert it within a reasonable time. Given that, the value of the spouse’s interest is:
| Trust powers | Value credited against the elective share |
|---|---|
| Qualifying invasion power (health, support and maintenance) and a qualifying general power of appointment exercisable by the spouse alone and in all events | 100% of trust principal |
| Qualifying invasion power but no qualifying power of appointment | 80% of trust principal |
| Neither | 50% of trust principal |
Where a trust does not qualify as an elective share trust or a qualifying special needs trust at all, the spouse’s interest is valued at its transfer tax value, but the aggregate value of the spouse’s interests may not exceed one-half of the trust principal on the applicable valuation date.
This table is where estate planning and elective share litigation meet. A trust drafted to give the spouse income for life and nothing else credits at 50 percent, which means twice as much property has to go into it to satisfy the same share. Whether the drafter understood that is often the most productive question in the case.
Who Collects the Money, and What if Nobody Pays?
Section 732.2145 answers both. The court determines the elective share and the contribution. The personal representative then collects: where property in the personal representative’s possession or control is distributable to someone required to contribute, the personal representative withholds the contribution from that distribution.
Where the property is outside the personal representative’s control, the personal representative may bring an action after the order of contribution, and the judgment must include the personal representative’s costs and reasonable attorney fees. A personal representative can also be relieved of the collection duty by court order where enforcement is impracticable given the improbability of obtaining or collecting a judgment, and is not liable for declining an attempt that would have been economically impracticable.
The Surviving Spouse Can Enforce It Personally
Section 732.2145(4) is the provision worth knowing if the personal representative is not on your side, which in second-marriage cases is common. It confers an independent right on the surviving spouse to collect the elective share as provided in the order of contribution, and it provides that if the surviving spouse brings the action to enforce the order, the judgment shall include the surviving spouse’s costs and reasonable attorney fees.
You do not have to rely on an adverse personal representative to chase your own money, and the statute puts your fees on the other side when you succeed.
Interest Runs on an Unpaid Elective Share
Two interest rules apply under § 732.2145(1). Any amount of the elective share not satisfied within two years of the date of death bears interest at the statutory rate until satisfied, and that runs even if no order of contribution has yet been entered. Separately, contributions bear interest at the statutory rate beginning 90 days after the order of contribution.
Delay is therefore expensive for the people resisting, which is a useful thing for a surviving spouse to know early and a useful thing for the other side to be reminded of.
Can a Prenuptial Agreement Waive the Elective Share?
Yes. Section 732.702 permits waiver of the elective share — along with the intestate share, the pretermitted share, homestead, exempt property, the family allowance, community property act claims, and preference in appointment as personal representative — wholly or partly, before or after marriage, by written contract, agreement or waiver signed by the waiving party in the presence of two subscribing witnesses.
A waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse waives every one of those rights at once, and operates as a renunciation of all benefits that would otherwise pass by intestate succession or under any will executed before the waiver.
The Disclosure Asymmetry That Decides Waiver Cases
Section 732.702(2) draws a line most people never hear about until it matters:
| When it was signed | Financial disclosure required? |
|---|---|
| Before the marriage (prenuptial) | No. The statute states expressly that no disclosure is required |
| After the marriage (postnuptial) | Yes. Each spouse must make fair disclosure of that spouse’s estate to the other |
The same document, signed a week before the wedding or a week after it, is governed by two different rules. A postnuptial waiver executed without fair disclosure is vulnerable in a way a prenuptial one is not, and establishing which side of the wedding a document falls on is often the first question in a waiver dispute.
Two further points. The two-witness requirement applies to agreements signed by Florida residents; an agreement executed by a nonresident is valid in Florida if it was valid where executed, whether or not the person was a Florida resident at death. And § 732.702 was amended effective June 13, 2024, so an agreement reviewed against an older version of the statute deserves a fresh look.
Who Should Consider Electing, and Who Should Not
The election is not automatically the right move, and running the numbers before filing is the whole job.
Electing usually helps where the will leaves the spouse a small fraction of a large estate; where the bulk of the wealth sits in a revocable trust, survivorship accounts or beneficiary designations rather than the probate estate; where substantial transfers were made in the final year of life; or where the spouse is left only a life interest in a trust that will credit at 50 or 80 percent rather than 100.
Electing rarely helps where the will already leaves the spouse everything or nearly everything; where the estate is modest and the homestead, exempt property and family allowance already deliver most of what there is; or where the elective estate turns out to be smaller than it looked because the major assets were owned jointly with the spouse from the outset.
Because that analysis takes time and the deadline does not wait, the sequence in practice is often to preserve the deadline first and complete the analysis inside the eight-month withdrawal window.
Does a Short Marriage Reduce the Elective Share?
No. Florida sets no minimum duration. Section 732.201 conditions the right on being the surviving spouse of a person who died domiciled in Florida, and nothing in the statute scales the share by the length of the marriage. A spouse of thirty years and a spouse of three months are entitled to the same 30 percent of the same elective estate. Some states phase the share in over time; Florida does not. Where a family finds that outcome unacceptable, the remedy was a prenuptial agreement under § 732.702, not an argument about duration after the fact.
What Happens if the Couple Was Divorced or Separating?
A final judgment of dissolution ends the marriage, and with it the elective share — the claimant must be a surviving spouse. A pending divorce that was never finalised before death does not, and that produces some of the hardest cases in this area: a couple living apart for years, a petition filed, and one of them dies before the judgment. Absent a valid waiver, the survivor is still the surviving spouse.
Section 732.702 reaches this too. A complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage or divorce operates as a waiver of all rights — elective share, intestate share, pretermitted share, homestead, exempt property and family allowance — unless it provides to the contrary. So the question in a separation case is usually not whether the marriage technically survived, but whether the couple signed something that gave the rights away.
Elective Share or Will Contest: Which Claim Fits?
They are different tools and they are not mutually exclusive. Choosing well at the outset saves a great deal of money.
| Elective share | Will contest | |
|---|---|---|
| What you must prove | That you are the surviving spouse. Nothing about the decedent’s conduct or state of mind | Lack of capacity, undue influence, fraud, or a defect in execution |
| What you get | 30% of the elective estate | Whatever the prior will or intestacy gives you, which may be more or less |
| Reaches non-probate assets? | Yes — trusts, survivorship accounts, beneficiary designations, one-year gifts | Generally no, unless the transfers are separately challenged |
| Cost and risk | Largely a computation and a collection exercise | Discovery, experts, and trial |
| Deadline | Earlier of 6 months from service of the notice of administration or 2 years from death | Governed by the notice of administration objection period |
The elective share is usually the cheaper and more certain route where the marriage is not in doubt, precisely because it does not require proving anything about how the will came to be written. A will contest becomes the better instrument where the estate was steered to someone outside the family, or where the spouse would take far more than 30 percent under a prior will or under intestacy.
A Second-Marriage Pattern Worth Recognising
The recurring case looks like this. A man remarries in his seventies. Over the following years his adult children help him move the house into a revocable trust, retitle the brokerage account with the children as transfer-on-death beneficiaries, and change the beneficiary on the IRA. The will leaves the new wife a modest cash gift. He dies, and the probate estate on paper is almost empty.
Under § 732.2035 almost none of that worked. The revocable trust is category 5. The transfer-on-death account is category 3. The IRA is category 8. The house is category 2 whether or not it is protected homestead. If any of it moved within the last year of his life, category 9 catches it again. The elective estate is close to the whole picture, and 30 percent of it is a real number.
What the planning did accomplish is to make the claim harder to collect rather than harder to establish, because the property now sits with recipients rather than in the probate estate. That is what the order of contribution in § 732.2075 and the enforcement provisions in § 732.2145 exist to solve, including the surviving spouse’s independent right to sue with fees.
How the Elective Share Fits With the Other Spousal Rights
| Right | What it delivers | Deadline |
|---|---|---|
| Elective share, § 732.2065 | 30% of the elective estate | Earlier of 6 months after service of the notice of administration or 2 years after death |
| Homestead, § 732.401 | Life estate by default, or an elected undivided one-half as tenant in common | 6 months from death; cannot be extended except in narrow guardian and attorney-in-fact situations, and is irrevocable once made |
| Exempt property, § 732.402 | Household furnishings up to $20,000, two motor vehicles, all § 529 plans, all § 112.1915 benefits | Later of 4 months after service of the notice of administration or 40 days after a proceeding affecting the estate ends; waived if missed |
| Family allowance, § 732.403 | Up to $18,000 in cash during administration | None stated; request early |
All four stack. None of them substitutes for another. A surviving spouse working through this should be looking at every row, because the deadlines differ and two of them are unforgiving. Our page on surviving spouse rights in Florida covers homestead, exempt property and the intestate share in plain language, and the Florida family allowance has a page of its own.
What the First Conversation Covers
Three questions decide almost everything: was the decedent domiciled in Florida at death, has the notice of administration been served on you and when, and what does the whole asset picture look like including the things that never went near the probate court.
Bring the death certificate, the will and any trust, the notice of administration if you have received one, and whatever you know about accounts, real property, retirement plans, life insurance and any transfers made in the last year. Bring any prenuptial or postnuptial agreement, and note whether it was signed before or after the wedding. If a personal representative has already been appointed and is not you, bring the letters and the case number.
If you believe the will itself is invalid rather than merely unfair, that is a different claim with different mechanics — see contesting a will in Florida and filing a caveat. The two are not mutually exclusive.
Talk to a Florida Probate Attorney About Your Elective Share
The elective share is one of the few rights in Florida probate with a hard clock attached and no forgiveness for missing it. If your spouse died as a Florida resident and you have been served with a notice of administration, the six-month period is already running.
Lorenzo Law represents surviving spouses in elective share and probate litigation throughout Florida, including Miami-Dade and Broward County. Call 305-224-6811 or reach out through our contact page.
This page explains Florida statutes for general informational purposes. It is not legal advice, and reading it does not create an attorney-client relationship. Statutory citations reflect Florida law in effect as of August 2026.