Spousal elective share in Florida
Florida gives a surviving spouse the right to claim 30% of the elective estate — even if the will leaves them nothing. Here's how the elective estate is calculated, when to file, and when it's worth claiming.
The 30% rule, plain English: Florida law gives a surviving spouse the right to take 30% of the elective estate at the death of the other spouse — regardless of what the will says. This means you cannot effectively disinherit a Florida spouse, even if you draft a will that leaves them nothing. They can override it.
It's called the elective share because the surviving spouse must affirmatively elect to take it. They have 6 months from notice of administration (or 2 years from death, whichever is earlier) to file the election. Miss the deadline and the right is lost.
What the 'elective estate' includes
The elective estate is bigger than the probate estate. Florida calculates it broadly to prevent decedents from drafting around the rule by transferring assets out of their name before death. The elective estate includes:
- The probate estate — what would pass through the will.
- Property held in revocable trusts — including the decedent's revocable living trust.
- Joint property with right of survivorship — to the extent the decedent contributed to it.
- POD/TOD accounts — including bank accounts and brokerage accounts with named beneficiaries.
- Life insurance proceeds — payable to anyone other than the surviving spouse.
- Retirement accounts — including IRAs and 401(k)s.
- Property transferred within one year of death — gifts that exceed annual exclusion amounts.
- Property transferred for less than full consideration during the marriage.
Why this list is long: it's intentionally broad. Florida's policy is that a surviving spouse should not be effectively disinherited through estate-planning maneuvers.
When a spouse might NOT take the elective share
Sometimes the elective share is worse for the surviving spouse than what the will provides. They should compare carefully before electing.
- Will leaves more than 30% — if the spouse is the primary beneficiary, the elective share is irrelevant.
- Will gives the spouse the entire homestead outright — sometimes the homestead alone exceeds 30% of the elective estate.
- Spouse waived rights via prenup or postnup — Florida recognizes valid waivers; they must satisfy specific statutory requirements.
- Spouse received substantial lifetime gifts — these can be credited against the elective share.
- Tax considerations — sometimes the elective share triggers unfavorable income or estate tax outcomes.
How to elect — the 6-month deadline
The election is procedurally specific. Miss any of these and the right is lost.
- Deadline: 6 months from notice of administration to surviving spouse, or 2 years from date of death, whichever is earlier.
- Filing: Written notice of election filed with the probate court and served on the personal representative.
- Counsel strongly recommended: the elective-estate calculation is technical; getting it wrong can cost the spouse a meaningful share.
- Inventory the elective estate: PR is required to provide one; spouse's counsel reviews and challenges as needed.
- Determination: court determines the share, and the PR satisfies it from elective-estate assets in a statutory order.
Pretermitted spouse — different rule
Florida has a separate rule for spouses married after the decedent signed their will (Florida Statute 732.301). If the will doesn't provide for the post-marriage spouse, that spouse gets an intestate share — typically half the estate, sometimes everything depending on family configuration.
Pretermitted spouse vs. elective share — these are two different rights:
- Pretermitted: applies only when marriage post-dates the will and the will doesn't mention the spouse.
- Elective: applies regardless of marriage date, even if the will explicitly disinherits the spouse.
- A spouse may have either right (or rarely both) — counsel determines which is more favorable.
Disinheriting a spouse — you mostly can't
Florida is one of the most spouse-protective states in the country. The combination of elective share + pretermitted spouse + homestead descent rules makes it nearly impossible to fully disinherit a spouse during a valid marriage.
The legitimate routes to limit a spouse's inheritance:
- Prenuptial or postnuptial agreement — must satisfy strict statutory requirements (full disclosure, opportunity for independent counsel, voluntariness, written, signed).
- Divorce — terminates spousal rights as of the final judgment.
- Estate planning that minimizes the elective estate — narrow path because the elective estate is broad.
- Lifetime gifts beyond 1 year before death — these typically fall outside the elective estate.
If you're considering disinheriting a spouse, a prenup is the only reliable tool — and it has to be done right. We draft them carefully when the situation calls for it.
What people ask us about this.
How is the elective share calculated?
Can I waive the elective share?
What if my spouse abandoned me but never divorced me?
If I leave my spouse the homestead and nothing else, is that 30%?
Can the elective share be paid out of any asset?
Related guides
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