Why You Need an Estate Attorney for Spousal Share in Florida
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Florida’s elective share guarantees a surviving spouse at least 30 percent of the decedent’s elective estate—even if the will says otherwise—providing financial security and preventing complete disinheritance. This guide maps out who qualifies, what assets count, how to calculate the share, waiver and disinheritance rules, claim deadlines, additional spousal protections, and common disputes. Along the way, you’ll gain insight into Florida Statute 732.201, elective-estate definitions, calculation examples, prenuptial/postnuptial waivers, probate-court procedures, homestead and family-allowance rights, and when to seek an estate and probate attorney in Florida.
What Is the Florida Spousal Elective Share and How Does It Protect Surviving Spouses?
The Florida spousal elective share is a statutory right that allows a surviving spouse to claim 30 percent of the decedent’s elective estate if the will provides less; it ensures that a surviving spouse cannot be left without adequate support. By overriding dispositions that unfairly favor other beneficiaries, the elective share protects against disinheritance schemes and aligns with public policy to uphold marital property rights.
Florida Elective Share Overview
The Florida elective share gives a surviving spouse the right to claim a portion of the deceased spouse’s estate, regardless of the will’s provisions. This ensures financial security and prevents complete disinheritance, aligning with the state’s public policy to protect marital property rights.
Florida Statute 732.201
This statute is the foundation for understanding the elective share in Florida, as it outlines the specific percentage and calculation methods.
What Does Florida Statute 732.201 Say About the Elective Share?
Florida Statute 732.201 establishes that a surviving spouse may elect to receive 30 percent of the decedent’s elective estate regardless of any contrary will provisions. The law applies to probate administrations and directs the personal representative to allocate assets up to the elective-share amount before distributing to other beneficiaries.
Why Is the Elective Share Important for Surviving Spouses?
The elective share safeguards a spouse’s financial security by preventing a decedent from disinheriting or underproviding for their partner. It reflects Florida’s public policy that marriage creates mutual financial obligations, ensuring a surviving spouse retains a life quality comparable to marital expectations.
Who Qualifies as a Surviving Spouse Under Florida Law?
A “surviving spouse” is a person legally married to the decedent at the time of death. A person who had their marriage annulled, was divorced, or legally separated partners do not qualify. Common-law spouses and divorcees lack elective-share rights, while remarried survivors still may elect their share from each prior spouse’s estate.
What Assets Are Included in the Florida Elective Estate?
The elective estate comprises probate and non-probate assets owned by the decedent at death that can be marshaled to calculate the 30 percent share. Unlike the narrower probate estate, the elective estate includes trust assets, TOD/POD accounts, life-insurance cash values, retirement benefits, and certain lifetime gifts.
Assets Included in the Elective Estate
The elective estate includes both probate and non-probate assets, such as those held in trusts, joint accounts, and retirement plans. This broad definition ensures that a surviving spouse’s share is calculated from a comprehensive pool of assets.
Florida Courts
This information is crucial for understanding the scope of assets considered when calculating the elective share.
Before reviewing the components, consider this visual breakdown:
These assets form the pool from which the elective share is drawn, ensuring that non-probate transfers cannot deplete a surviving spouse’s statutory claim.
How Is the Florida Elective Share Calculated?
Calculating the elective share begins with determining the elective estate’s gross value, deducting liabilities and expenses, and applying the 30 percent rule. This formula produces the net elective share owed to the surviving spouse.
What Is the Standard 30 Percent Elective Share Rule?
Under Florida Statute 732.201, the elective share equals 30 percent of the net elective estate. The calculation uses the formula:
- Aggregate gross elective-estate assets.
- Subtract mortgage balances, administration costs, and funeral expenses.
- Multiply the net figure by 0.30 to arrive at the surviving spouse’s share.
How Are Liabilities and Expenses Deducted from the Elective Estate?
Allowed deductions include secured debts on elective-estate property, unpaid administration fees, funeral costs, and state-death-tax liens. These deductions ensure the elective share reflects the estate’s genuine distributable value.
Can You See Examples of Elective Share Calculations?
Consider a decedent with a $1 million elective estate and $200,000 in liabilities and expenses. After deductions, the net elective estate is $800,000; the surviving spouse’s share is 30 percent of $800,000, or $240,000.
Is There an Interactive Calculator to Estimate the Elective Share?
Many estate-planning websites offer elective-share calculators where you enter gross values, liabilities, and percentages to obtain instant estimates. Such tools guide planning conversations with a qualified Florida probate attorney. Contact our office to schedule a consultation to discuss your rights at 407-865-9553 or by email at info@murphyberglund.com.
Can a Spouse Be Disinherited in Florida? What Are the Legal Limitations?
No, Florida law bars complete disinheritance of a spouse without a valid waiver; the elective share overrides any testamentary provision that would leave the spouse with less than 30 percent of the elective estate.
Why Is Complete Disinheritance of a Spouse Usually Not Allowed?
Elective-share rights reflect a public-policy principle that spouses owe mutual support; depriving a surviving spouse of reasonable provision conflicts with statutory and constitutional protections for marital partnerships.
How Do Prenuptial and Postnuptial Agreements Waive Elective Share Rights?
A valid prenuptial or postnuptial agreement may waive a spouse’s elective share so long as it is in writing, signed voluntarily by both parties, and supported by full financial disclosure. Prenuptial Agreements are complex documents that are often challenged. Our office can also assist with drafting a legally sound agreement to avoid an elective share claim if this meets your goals.
Waivers and Disinheritance
Valid prenuptial or postnuptial agreements can waive the elective share, provided they meet specific legal requirements, including written form, full financial disclosure, and voluntary consent. These agreements are carefully scrutinized by courts, especially in second marriages.
Florida Bar
This highlights the importance of legal counsel in drafting and reviewing such agreements to ensure they are enforceable.
What Are the Legal Requirements for Valid Elective Share Waivers?
Elective share waivers must be executed in compliance with Florida law: written contract, fair and reasonable disclosure of assets, and ideally independent counsel for both spouses to prevent challenges for duress or fraud.
How Do Second Marriages and Blended Families Affect Elective Share Waivers?
In second marriages, spouses often negotiate waivers to protect children’s inheritance rights; courts will scrutinize waiver validity more closely when significant age or asset disparities exist to guard against undue influence.
What Are the Time Limits and Procedures for Claiming the Elective Share in Florida?
To assert the elective share, a surviving spouse must file an election with the probate court within statutory deadlines and follow prescribed procedural steps. Our office offers a complimentary consultation to discuss filing the election.
When Must a Surviving Spouse File an Elective Share Claim?
In Florida, the election must be filed no later than the earlier of six months after receiving formal notice of administration or two years from the decedent’s date of death.
What Is the Role of the Probate Court in Elective Share Claims?
The probate court reviews the election, validates asset valuations, oversees administration of share transfers, and resolves objections from other beneficiaries or the personal representative.
How Does the Personal Representative Affect the Elective Share Process?
A personal representative must inventory elective-estate assets, notify the surviving spouse, cooperate in valuation, and facilitate the transfer of assets or funds to satisfy the elective share.
What Additional Rights Do Surviving Spouses Have Beyond the Elective Share?
Florida law grants surviving spouses further protections—homestead rights, family allowance, and exempt property—that supplement the elective share and ensure basic needs are met during probate.
How Does the Homestead Exemption Protect Surviving Spouses?
The homestead exemption allows the surviving spouse to occupy the family home for life or until remarriage, regardless of will provisions, preserving a residence free from certain creditors’ claims.
What Is the Family Allowance and How Does It Work?
A family allowance provides a reasonable monetary sum—not to exceed $18,000 as of 2025—for the surviving spouse’s maintenance during estate administration before final distributions.
What Are Exempt Property Rights for Surviving Spouses in Florida?
Florida law exempts personal property up to a statutory dollar amount (clothing, furnishings, automobiles) for the spouse’s use, ensuring basic household needs are covered. Two motor vehicles are also potentially exempt depending on their use and gross weight.
What Are Common Elective Share Disputes and How Are They Resolved?
Elective share disputes often arise over asset valuations, inclusion of non-probate transfers, waiver validity, and competing creditor claims, requiring litigation or settlement.
What Causes Elective Share Litigation in Florida Probate Cases?
Key triggers include disagreements on fair market values, contention over whether an asset belongs to the elective estate, challenges to waiver enforceability, and creditor-versus-spouse priority conflicts.
How Does the Probate Court Handle Elective Share Contests?
The court conducts hearings on valuation experts, interprets waiver language, applies statutory definitions, and may order receivership or asset partition to fulfill the surviving spouse’s claim.
When Should You Consult an Estate and Probate Attorney in Florida?
Early consultation is critical if you anticipate elective-share planning, waiver drafting, contested valuations, blended-family complexities, or potential litigation to safeguard rights and streamline probate.
Frequently Asked Questions About Florida Spousal Elective Share
What Is the Elective Share in Florida?
The elective share is a surviving spouse’s right under Florida Statute 732.201 to claim 30 percent of the decedent’s elective estate, regardless of will provisions.
How Much Is the Elective Share Percentage?
Florida law fixes the elective share at 30 percent of the net elective estate after deducting liabilities and administration expenses.
What Assets Are Included in the Elective Estate?
Assets include probate property, revocable-trust assets, jointly held property, POD/TOD accounts, life-insurance cash surrender value, retirement accounts, and gifts made within six months of death.
Can You Disinherit a Spouse in Florida?
No; any attempt to leave the surviving spouse with less than the statutory minimum is overridden by the elective share, unless a valid waiver exists or the spouse fails to claim their elective share.
How Can a Spouse Waive Their Elective Share?
Waivers occur through prenuptial or postnuptial agreements that meet Florida’s writing, disclosure, and voluntary-consent requirements.
What Are the Deadlines to Claim the Elective Share?
The surviving spouse must file an election within six months of notice of administration or two years after the decedent’s death, whichever comes first.
Florida’s spousal elective-share law embodies a strong public-policy commitment to marital support by guaranteeing at least 30 percent of the decedent’s elective estate to a surviving spouse. Understanding asset inclusion, calculation methods, waiver mechanics, and procedural deadlines is vital for both estate planning and probate administration. With homestead, family allowance, and exempt-property rights layered atop the elective share, Florida protects surviving spouses from unfair disinheritance. For tailored guidance and effective representation in elective-share matters, consult an experienced estate and probate attorney in Florida.
Authored by Michelle A. Berglund-Harper, Esq., a member of The Florida Bar, Attorney & Partner at Murphy & Berglund, PLLC since 2012. A link to the author’s bio can be found here.