Elective Share
Protecting the statutory inheritance rights of a surviving spouse.
In Florida, you cannot completely disinherit your spouse. The law grants a surviving spouse the right to claim an 'Elective Share' of the deceased spouse's estate.
The Elective Share is generally equal to 30% of the 'elective estate,' which includes not just probate assets, but also trusts, joint accounts, and certain property transferred before death.
Whether you are a surviving spouse seeking to claim your rightful share, or a Personal Representative defending the estate against a complex calculation, we provide the necessary legal advocacy.
Key Benefits
Spousal Protection
Ensures a surviving spouse is not left destitute, regardless of what the Will says.
Complex Calculations
Accurately determining the value of the 'elective estate' across multiple asset types.
Litigation Support
Representation in disputes over the validity or amount of the elective share.
Frequently Asked Questions
Is the Elective Share automatic?
No. The surviving spouse must actively file an election with the probate court within a strict statutory deadline.
Can the Elective Share be waived?
Yes, spouses can waive their right to the elective share through a valid prenuptial or postnuptial agreement.
How much is the elective share in Florida?
The elective share is an amount equal to 30 percent of what Florida calls the elective estate. The elective estate is a defined list and is broader than the probate estate. It includes the probate estate, the decedent's interest in protected homestead, pay-on-death and transfer-on-death and in-trust-for and survivorship accounts, property the decedent could revoke at death, the net cash surrender value of life insurance on the decedent's life, and certain retirement and pension benefits.
How long do I have to claim the elective share?
The election must be filed by the earlier of two dates: six months after a copy of the notice of administration is served on the surviving spouse, or two years after the date of death. Because the law uses whichever comes first, in most administered estates the practical deadline is the six-month one. A surviving spouse may ask the court for an extension, which the court may grant for good cause shown, and that request must itself be filed no more than two years after the death.
My spouse put nearly everything into a living trust and payable-on-death accounts. Is there anything left for me to claim?
Possibly. The elective share is not limited to assets passing under the Will. The elective estate is defined to include property the decedent could revoke or control at death, such as revocable trust property, pay-on-death and transfer-on-death and in-trust-for accounts, jointly held property, the interest in protected homestead, and the net cash surrender value of life insurance. It also reaches certain property transferred during the year before death. Florida does list specific exclusions, so which assets count in a particular estate has to be reviewed against that list.
If I claim the elective share, do I give up what my spouse's Will already left me?
No, it is not an either-or choice. Florida law says the election does not reduce what the surviving spouse would receive if the election were not made, and the surviving spouse is not treated as having died first. In practice, property already passing to the surviving spouse is applied first toward satisfying the 30 percent, and only the unsatisfied balance is collected from other recipients. That means the election matters most when what the spouse already receives adds up to less than 30 percent.
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