Elective Share Surviving Spouse

What Is the Elective Share?

The elective share is Florida's primary protection for surviving spouses. Under Florida Statute 732.2065, a surviving spouse has the right to receive at least 30% of the deceased spouse's "elective estate," regardless of what the will says.

If the will leaves the surviving spouse less than 30% (or nothing at all), the spouse can "elect against the will" and claim their statutory share. This is a powerful right that cannot be defeated by the deceased spouse's estate planning, short of a valid prenuptial or postnuptial agreement.

What Is the "Elective Estate"?

The elective estate is broader than the probate estate. It includes:

• All probate assets (assets in the decedent's name alone).
• Assets in revocable trusts (a trust cannot be used to avoid the elective share).
• The decedent's interest in joint accounts and joint real estate.
• The decedent's interest in retirement accounts and life insurance payable to third parties.
• Property the decedent transferred within one year of death with retained control.

The elective estate captures virtually all assets the decedent owned or controlled, making it extremely difficult to avoid.

Filing the Election

The surviving spouse must file the election with the probate court within the later of 6 months after receiving the Notice of Administration or 2 years after the decedent's death. Missing this deadline permanently waives the elective share right.

Related Terms

• Disinheritance — The elective share prevents full spousal disinheritance
• Probate — The court process where the election is filed
• Living Trust — Cannot be used to circumvent the elective share

Barnes Walker Estate Planning

Barnes Walker's estate planning attorneys advise Florida surviving spouses on elective share rights and represent clients in contested elections, calculating the full elective estate to ensure maximum recovery against wills and trusts that attempt to disinherit the surviving spouse. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC