Florida Statute 732.2035
“Property entering into elective estate”
What it means
The elective share is 30 percent — this section decides 30 percent of what. The elective estate starts with the probate estate, then pulls in most of what passes outside it: the decedent's interest in protected homestead, pay-on-death and transfer-on-death accounts, the decedent's share of joint and survivorship property, revocable transfers (a living trust included), certain retained-interest transfers, the net cash surrender value of life insurance on the decedent's life, and death benefits under retirement plans.
It also reaches back: property given away during the 1-year period before death comes back into the ledger, beyond an annual-exclusion allowance per recipient and direct payments for medical or educational expenses.
- Starts with the probate estate and adds the decedent's interest in protected homestead.
- Adds POD, TOD, In-Trust-For, and survivorship accounts — for tenancy by the entireties, one-half of the value counts.
- Adds the decedent's fractional share of other joint property, all revocable transfers, and transfers with retained income or principal rights.
- Adds the net cash surrender value of life insurance on the decedent's life and retirement-plan death benefits — Railroad Retirement and Social Security excluded.
- Reaches back to gifts made within 1 year of death, excluding federal annual-exclusion amounts per donee and direct medical or education payments.
How it plays out
This definition is why "I put everything in a trust" rarely defeats a Florida spouse. When we run an elective-share analysis, the probate inventory is the starting point, not the answer: we pull trust statements, account titling, beneficiary designations, policy values, and a year of gift history. The breadth cuts both ways — personal representatives need the same full picture before conceding or contesting an election, because the 30 percent is computed on this base, then satisfied first from what the spouse already receives.
Where this shows up
Pages on this site where § 732.2035 does real work:
Questions people ask
