Question 1

What is the spousal elective share in Florida?

Accepted Answer

FL elective share (Section 732.2065): the surviving spouse has the right to receive 30% of the decedent’s "elective estate" regardless of what the will provides. The elective estate includes: the probate estate, revocable trust assets, joint tenancy property (the decedent’s share), beneficiary designations (life insurance, retirement accounts), and transfers within 1 year of death. Purpose: prevents a spouse from being disinherited. The surviving spouse: must make the election within 6 months of service of the notice of administration (or within 2 years of the decedent’s death, whichever is earlier).

Question 2

How is the elective share calculated in Florida?

Accepted Answer

Calculation (Section 732.2035): the elective estate = probate estate + the following: revocable trust assets (the value of assets in the decedent’s revocable trust), joint tenancy (the decedent’s fractional interest), payable on death accounts (the value passing to beneficiaries other than the spouse), life insurance (if the decedent retained incidents of ownership), retirement accounts (the value passing to beneficiaries other than the spouse), and transfers within 1 year (gifts, transfers, and contributions). The surviving spouse receives: 30% of the elective estate, minus: property the surviving spouse already received from the decedent (through the will, trust, or other transfer).

Question 3

Can the elective share be waived in Florida?

Accepted Answer

Waiver: yes. A surviving spouse can waive the elective share through: a prenuptial agreement (Section 732.702: the waiver must be in writing, signed by the waiving party, and made with full disclosure of the other spouse’s assets), a postnuptial agreement (same requirements as a prenuptial), or a written waiver filed with the court. The waiver must: be voluntary (not obtained through fraud, duress, or undue influence), be supported by fair disclosure (or the waiving spouse had independent knowledge of the other’s assets), and not be unconscionable at the time of enforcement.

Spousal Elective Share

Spousal Elective Share in Florida

What’s Included

Election

Waiver

Related Terms

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