What the rule says
Florida provides surviving spouses with a robust elective-share right under Florida Statutes § 732.201 et seq. A surviving spouse can elect to take 30% of the elective estate — a broadly defined pool that reaches beyond just the probate estate — instead of taking under the deceased spouse's will.
The Florida elective share has several distinctive features:
- 30% of the elective estate. The percentage is fixed and applies regardless of marriage length, family circumstances, or other factors. (Some states use sliding-scale percentages based on years of marriage; Florida does not.) - Augmented estate concept. The elective estate includes not just probate property but also many lifetime transfers, non-probate assets, and certain trust interests under Florida Statutes § 732.2035. - Reaches around will and trust planning. A spouse cannot effectively disinherit a surviving spouse through a will, a revocable trust, or many forms of non-probate transfer. - Strict time limits. The election must be made within the earlier of six months after service of the notice of administration or two years after the decedent's death (Fla. Stat. § 732.2135). - Can be waived. A premarital or postmarital agreement that meets statutory requirements can waive the elective-share right.
What's included in the elective estate
Florida Statutes § 732.2035 defines the elective estate broadly. It includes:
- The decedent's probate estate (property passing under the will or by intestacy) - The decedent's revocable trust property at death - The decedent's interests in property held with right of survivorship - The decedent's pay-on-death and transfer-on-death accounts - Most retirement plan death benefits - Net cash surrender values of life insurance owned by the decedent - Property transferred by the decedent during life if the decedent retained certain interests or powers - Certain transfers within one year of death - Property over which the decedent had a presently exercisable general power of appointment
The expansive definition reflects the Florida legislature's policy that elective-share protection should not be defeatable through routine non-probate planning techniques. A spouse cannot avoid the elective share by titling property in joint accounts, placing assets in a revocable trust, or making last-minute transfers.
Limits and exclusions from the elective estate
The elective estate does not include everything. Notably excluded:
- Constitutional homestead — property protected under Article X, Section 4 of the Florida Constitution is treated separately and is not part of the elective estate. - Property the surviving spouse has already received. The elective share is reduced by amounts the surviving spouse has already received from the elective estate (under the will, by joint title, by beneficiary designation, etc.). - Certain irrevocable trust interests — depending on the structure of the trust, some interests are excluded. - Transfers made more than one year before death that did not retain interests or powers — generally excluded. - Transfers consented to by the surviving spouse — a spouse who consented to a transfer cannot later include it in the elective estate.
The complexity of the inclusion and exclusion rules makes elective-share litigation common in larger Florida estates.
How the election is made
The surviving spouse — or the spouse's guardian or attorney-in-fact, if the spouse lacks capacity — files a written election with the court within the statutory time limits. After the election is filed:
- The 30% calculation is made. The court determines the elective estate's value and calculates 30%. - Credits are applied. The amount the spouse receives under the will, by joint title, by beneficiary designation, or otherwise is credited against the 30% target. - The remainder is paid from the elective estate. Various assets within the elective estate are reached in a specified order to satisfy the elective share. - The will is otherwise honored. The election does not invalidate the will entirely; it adjusts what the spouse receives. The remaining estate is distributed according to the will's terms (subject to the elective-share adjustments).
The procedure is technical and time-sensitive. Surviving spouses typically engage Florida probate counsel to prepare and file the election.
What this means in practice
The elective share produces a meaningful protection for surviving spouses, particularly when:
- The decedent's will leaves the surviving spouse less than 30% of the elective estate - The decedent attempted to disinherit the surviving spouse through revocable trusts or non-probate transfers - The decedent's wealth was held primarily in non-probate forms (retirement plans, life insurance, joint accounts) - The surviving spouse needs more than the will provides for ongoing support
For surviving spouses who are well-provided-for under the will (or by joint title, beneficiary designation, etc.), the elective share calculation may show that the spouse already receives more than 30%, eliminating any benefit to electing.
For surviving spouses inadequately provided for, the election typically produces a substantial increase in inheritance — sometimes from very little under the will to 30% of a substantial elective estate.
Premarital and postmarital agreements
The elective share can be waived by written agreement under Florida Statutes § 732.702. Common contexts:
- Premarital agreements. Couples entering a marriage with significant pre-existing wealth, especially when one or both spouses have children from prior relationships, often include elective-share waivers in premarital agreements. - Postmarital agreements. Spouses can agree, after marriage, to waive the elective share in the context of estate planning, financial planning, or anticipated divorce.
For a waiver to be enforceable, Florida law requires specific formalities, including disclosure of relevant assets and circumstances. Defective waivers can be set aside, restoring the elective-share right.
What you can do about it
For Florida married couples:
- Understand the elective share's reach. A spouse cannot effectively disinherit the other spouse through ordinary planning techniques without an enforceable waiver. - Consider premarital agreements when appropriate. Couples with prior children, separate wealth, or other reasons to limit cross-spousal inheritance often use premarital agreements. - Plan with the elective share in mind. Estate plans should account for the surviving spouse's elective-share right rather than assume the spouse will accept what the will provides. - Document spousal consent for transfers. When making lifetime gifts or transfers that might affect the elective estate, documented spousal consent can preclude later inclusion.
For surviving Florida spouses:
- Calculate the elective share early. Determine within the first weeks after death whether election is beneficial. - Engage Florida probate counsel. The technical complexity warrants professional analysis. - Make the election within time limits. Late elections are rejected; the deadlines are not flexible. - Coordinate with other rights. The elective share is one of several protections; the homestead, family allowance, and exempt property rights are separate and additive.
Who this affects most
The Florida elective share is most consequential for:
- Surviving Florida spouses inadequately provided for under their deceased spouse's will - Blended families where the deceased spouse may have wanted to direct assets to children from a prior relationship - Estates where the deceased spouse's wealth was held primarily in non-probate forms - New Florida residents from non-elective-share states (such as Texas) who may not realize the protection now applies - Estate planners advising Florida clients on elective-share-aware planning
The Florida elective share is among the most spouse-protective in the country. The combination of a fixed 30% percentage and an expansive elective estate reaches across many forms of property and many planning techniques to ensure the surviving spouse receives meaningful inheritance.