Elective Share

Florida has numerous laws for protecting the surviving spouse in the event of death or divorce. In addition to Florida homestead protection and family allowance,  the surviving spouse may “elect” to take a dollar amount equal to thirty percent (30%) of the deceased’s estate (the “elective share”) in lieu of receiving any benefits provided under the deceased’s will or intestacy statutes.  This is at odds with and can serve to frustrate an estate administration when the election to take an elective tends to go against the wishes of the decedent’s will and can lead to extensive litigation regarding the valuation and determination of entitlement to the election.

Florida’s Elective Share laws can be found within the Florida Probate Code at Florida Statute §732.201 through §732.2155.

The elective share is an amount equal to 30% of the elective estate.  So what is included in the elective estate?

Florida Statute §732.2035 sets forth which property enters into the elective estate, which includes:

  • The decedent’s Probate Estate defined as “all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia.”
  • Joint bank Accounts, Pay on Death Accounts, and other accounts with a beneficiary designation that may and may not include the spouse
  • Property Held as Joint Tenancy and Tenancy by the Entireties (these amounts are limited to decedent’s ownership interest in the property)
  • Revocable Trusts in which the decedent holds certain rights to income or modify
  • Certain irrevocable transfers, including transfers in which the decedent, prior to death had a right to receive income or principal or a right to receive or make discretionary principal distributions
  • Life Insurance policies which are payable to someone other than the surviving spouse (this value is limited to the decedent’s interest in the net cash surrender value immediately prior to their death)
  • Pensions and Retirement Plans
  • Certain transfers which the Decedent made within one year of their death, including gifts
  • Irrevocable transfers made to an Elective Share Trust
  • Property which passes directly to the surviving spouse at the time of decedent’s death

In certain instances, the Florida elective share may be barred or waived if at the time of the Decedent’s death there existed a valid pre-nuptial agreement or some other written agreement executed either before or after marriage.

The Florida elective share can be barred if the surviving spouse fails to make the election on or before the earlier of the date that is six (6) months after the date of service of a copy of the notice of administration on the surviving spouse or the date that is two (2) years after the date of the decedent’s death.

If you believe that you or a loved one are entitled to a Florida elective share, or have questions regarding how to determine the value of the elective share or regarding how to avoid payment of elective share, please contact Florida Probate Lawyer Christopher P. Taylor today.