What the rule says
Florida provides two distinct statutory protections for surviving spouses, and they can operate together for spouses who qualify under both:
1. Pretermitted-spouse rights under Florida Statutes § 732.301. Apply when the surviving spouse married the testator after the testator's will was executed and the will does not provide for the spouse. The pretermitted spouse takes a share equal to what they would have received under intestacy. 2. Elective-share rights under Florida Statutes § 732.201. Apply to any surviving spouse, regardless of whether the will pre-dates the marriage. The surviving spouse can elect to take 30% of the elective estate.
A spouse who is both pretermitted and entitled to the elective share can pursue both rights, and they generally do not preclude each other.
How the two rights interact
The rights operate through different mechanisms:
- Pretermitted-spouse rights treat the spouse as though they had been included under the will, giving them an intestate-equivalent share. The will is otherwise honored, with the pretermitted spouse's share funded from the residue and from gifts to other beneficiaries proportionally. - Elective-share rights allow the spouse to override the will's distribution and take 30% of a defined elective estate, which includes probate and many non-probate assets.
The two share calculations can produce different results:
- The pretermitted-spouse share is calculated against the probate estate using intestacy rules. Under Florida intestacy, when there are descendants from a prior relationship, the spouse takes one-half; when descendants are mutual (or none), the spouse takes everything. The pretermitted-spouse share can therefore be 50% to 100% of the probate estate. - The elective share is fixed at 30% of an elective estate that may be larger than the probate estate (because it includes non-probate transfers).
Depending on circumstances:
- In small probate estates with substantial non-probate transfers, the elective share may produce more because of the augmented elective-estate calculation. - In large probate estates with mutual descendants, the pretermitted-spouse share (which can be the entire probate estate under § 732.102(1)) may exceed 30% of the elective estate. - In blended-family situations, the pretermitted-spouse share is one-half of the probate estate, while the elective share is 30% of a larger elective estate. Either can be larger depending on asset structure.
A surviving spouse facing this analysis typically calculates both, in consultation with Florida probate counsel, and pursues whichever produces the larger result.
What happens procedurally
The procedures for asserting the two rights differ:
- Pretermitted-spouse rights are automatic. The personal representative is responsible for recognizing the pretermitted-spouse share and adjusting the distribution accordingly. The spouse does not file an election; the rights apply by operation of law. - Elective-share rights require an election. The spouse files a written election with the court within strict time limits (the earlier of six months after notice of administration or two years after death).
If the surviving spouse files an election for the elective share, the personal representative addresses both the pretermitted-spouse calculation and the elective-share calculation. The spouse generally takes the larger of the two amounts (with appropriate netting).
If the surviving spouse does not file an elective-share election, only the pretermitted-spouse rights apply. The spouse's share is adjusted under § 732.301 but the elective-share mechanisms are not available.
Strategic considerations
The interaction creates strategic considerations:
- The spouse should typically calculate both shares. Failing to consider both leaves potential value on the table. - The election deadline drives timing. The spouse must decide whether to file the elective-share election within the statutory deadline, even if the pretermitted-spouse calculation alone would produce a satisfactory result. - Tax considerations may differ. The two share calculations may produce different tax outcomes (depending on what types of assets fund each share). Coordination with tax counsel matters. - Asset selection in funding the share. When both rights apply, decisions about which assets fund the share can affect the spouse's tax basis, liquidity, and ongoing income.
Exceptions that affect both rights
Both pretermitted-spouse rights and elective-share rights can be waived through valid premarital or postmarital agreements:
- Pretermitted-spouse waiver. Florida Statutes § 732.301 specifies that the rights do not apply if the will discloses an intent to exclude future spouses or if the spouse is provided for in a written agreement. - Elective-share waiver. Florida Statutes § 732.702 allows waiver of the elective share through a written agreement meeting statutory requirements.
A premarital agreement that addresses both rights is the cleanest way to limit cross-spousal inheritance when that is the parties' intent.
What you can do about it
For a surviving Florida spouse who married the decedent after the will was executed:
1. Calculate both shares. Determine the pretermitted-spouse share under intestacy and the elective share under § 732.201. 2. Compare the two. The spouse generally benefits from whichever produces the larger amount. 3. File the elective-share election within the deadline if appropriate. Even if the pretermitted-spouse share alone would be satisfactory, filing the election preserves options. 4. Engage Florida probate counsel. The interaction is technical and time-sensitive.
For estate planners advising Florida clients:
- Update the will after marriage. A will updated to address the new spouse explicitly eliminates the pretermitted-spouse analysis. - Consider whether to negate both rights. Premarital or postmarital agreements addressing both pretermitted-spouse and elective-share rights are common in second marriages and other contexts where the spouses do not want full default inheritance protection. - Address the interaction in trust documents. Revocable trusts that pre-date a marriage face similar issues and benefit from updates after marriage.
Who this affects most
The interaction is most consequential for:
- Surviving Florida spouses whose marriage post-dated the will - Estate planners advising on second marriages and blended families - Spouses who entered into premarital agreements that may or may not have addressed both protections - Personal representatives administering estates where the surviving spouse may have multiple overlapping rights
Florida's overlapping protections produce robust outcomes for surviving spouses but require careful analysis to identify which protection — or combination — produces the best result for a given surviving spouse. Engaging counsel early in administration, before the elective-share deadline expires, is essential.