What You Should Know About Florida’s Elective Share and Spousal Rights

By: Anthony Cetrangelo, Jr., Esquire

One often overlooked but crucial aspect of estate planning is Florida’s Elective Share law, which protects surviving spouses from being disinherited. Understanding the elective share is especially important for those in second marriages, blended families, or those with significant individual assets. Without proper planning, a surviving spouse may be entitled to more than intended, potentially disrupting the decedent’s estate plan. This article explains the implications of Florida’s elective share, how it impacts estate planning, and what steps couples should take to avoid costly legal battles.

What Is Florida’s Elective Share?

Under Florida Statute § 732.201, the elective share gives a surviving spouse the right to claim 30% of the deceased spouse’s “elective estate.” This applies even if the deceased’s will attempts to leave the surviving spouse nothing.

What Does the Elective Estate Include?

Unlike a simple probate estate, the elective estate includes:

• Probate assets (assets owned solely by the decedent)
• Revocable trust assets
• Jointly held property (such as real estate owned as joint tenants with rights of survivorship)
• Payable-on-death (POD) and transfer-on-death (TOD) accounts
• Retirement accounts and life insurance (sometimes, depending on beneficiary designations)
• Certain gifts made within one year before death

The purpose of this law is to prevent one spouse from intentionally disinheriting the other or attempting to move assets out of reach through non-probate transfers.

Why Florida Residents Must Pay Attention to the Elective Share

While Florida is a favorable state for estate planning due to its lack of a state estate tax, its elective share laws can significantly impact asset distribution. Florida Bar Board Certified Wills, Trusts and Estate Planning Lawyer Ernest Hatch shares,

“Many clients assume that a will or trust alone will dictate how their assets are distributed at death, however Florida’s elective share laws may override those documents in some instances. The state prioritizes spousal protection, meaning that if someone wants to leave their spouse less than 30%, they can’t without the surviving spouse’s acceptance of a lesser amount or proper legal strategies in place.”

For high-net-worth individuals, business owners, or those in second marriages, this could mean that assets they intended for children or other heirs end up going to their surviving spouse instead.

From a family law perspective, Beth T. Vogelsang, a Florida Bar Board Marital and Family law expert, shares,

“So many people assume that their will and trust controls what death benefits they leave to their surviving spouse, and they are unaware that they need a prenuptial agreement or a postnuptial agreement if they wish to leave their spouse less than 30% of their assets. Even if a spouse intends to leave assets to children from a prior marriage or other beneficiaries, the surviving spouse can claim a significant portion of the estate without a waiver in a nuptial agreement. A properly executed waiver ensures that each party’s estate plan is honored.”

This makes prenuptial and postnuptial agreements essential for couples who want to structure their estate plans differently from what Florida law mandates.

How to Avoid Elective Share Disputes in Estate Planning

To ensure your estate plan reflects your actual wishes and prevents legal conflicts, consider the following strategies:

• Waive the Elective Share in a Prenuptial or Postnuptial Agreement. Florida allows spouses to waive their elective share rights. However, it must be in writing, with full financial disclosure, and with legal counsel for both parties. A prenuptial or postnuptial agreement can outline how assets will be divided and prevent disputes later. Without a waiver, the surviving spouse retains the right to claim the elective share—no matter what the will says.
• Use Trusts to Control Asset Distribution. A Qualified Terminable Interest Property (QTIP) Trust can provide for a surviving spouse while directing the remaining assets to other beneficiaries, such as children from a previous marriage. Revocable living trusts can be structured to limit what passes through the elective estate.
• Structure Non-Probate Transfers Carefully. Assets that pass via beneficiary designation (like IRAs, 401(k)s, and life insurance) may still be included in the elective estate. Gifting strategies should be carefully timed, as transfers made within one year of death may still be subject to the elective share.

What Happens If a Surviving Spouse Files for an Elective Share?

If a surviving spouse elects to claim the 30% share, the estate must undergo a valuation process to determine the total value of the elective estate. The court will then distribute assets accordingly. Note that the surviving spouse must file within six months of receiving notice of administration or within two years of the date of death. If the claim is contested, litigation can delay estate distribution significantly. This is why clear estate planning and legal guidance are essential to avoid unexpected claims.

Bottom Line

Florida’s elective share law is designed to protect surviving spouses, but without proper planning, it can lead to unintended consequences. Whether you’re in a blended family, own multiple properties, or want to ensure your estate plan is honored, it’s crucial to work with an estate planning attorney to structure assets properly; consult a family law attorney if a waiver is needed in a prenuptial or postnuptial agreement; and regularly review your estate plan to account for changes in marriage, divorce, or financial circumstances. By proactively addressing Florida’s elective share laws, you can prevent surprises and legal battles, ensuring your estate is distributed according to your wishes.

Those needing assistance may reach me at anthony.cetrangelo@henlaw.com to schedule a consultation.