The Surviving Spouse’s Elective Share Under Florida Law

Historically, individuals could effectively disinherit their spouses by leaving them out of their wills. When the Florida legislature first created the elective share for surviving spouses, it was limited to the probate estate, which allowed individuals to still disinherit their surviving spouses by eliminating their probate estates.

Under current Florida law, surviving spouses’ elective shares include more than the probate estate. The elective share statutes ensure that surviving spouses can claim some of their deceased spouse’s assets, absent a prenuptial or postnuptial agreement. A Florida probate attorney at Kramer Green can assist you in opening an estate for your loved one. We can help you explore your options, including exercising your right to the elective share as a surviving spouse, and help you choose the best option for you and your family.

Understanding the Elective Share

Florida Statutes §732.201 et seq. governs the elective share of a surviving spouse of an individual who dies while domiciled in Florida. Under this statute, the surviving spouse is entitled to an elective share equal to 30% of the elective estate.

If the spouse opts  to exercise the elective share, the election does not reduce what the spouse would otherwise  receive under the estate plan of the decedent.

Defining the Elective Estate

  • 732.2035 defines the elective estate as the sum of the values of the following property interests:
  • The decedent’s probate estate;
  • The protected homestead of the decedent;
  • The decedent’s ownership interest in accounts or securities registered in “Pay on Death,” “Transfer on Death,” “In Trust for,” or co-ownership with rights of survivorship form. This ownership interest includes one-half of any accounts or securities held in tenancy by the entirety and, in other cases, the amount that the decedent had the right to withdraw or use immediately before his or her death;
  • The decedent’s fractional interest in other property held in joint tenancy with rights of survivorship;
  • That portion of other property that the decedent transferred to the extent that, at the time of his or her death, was revocable alone or in conjunction with any other person;
  • That portion of other property that was transferred at the time of the decedent’s death, to the extent that (with some exceptions):
    • The decedent possessed the right to or use of the income or principal of the property; or
    • The principal could, at the discretion of someone other than the decedent, be distributed or appointed to or for the benefit of the decedent;
  • The decedent’s beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent’s life;
  • The value of amounts payable to or for the benefit of any person because of surviving the decedent under any public or private pension, retirement, or deferred compensation plan, or any similar arrangement other than the federal Railroad Retirement Act or the federal Social Security system;
  • Property that was transferred in certain ways one year before the decedent’s death; and
  • Property transferred in satisfaction of the elective share.
  • 732.2045 specifically excludes some property from the elective estate, such as:
  • Most irrevocable transfers of property before the date of the decedent’s marriage to the surviving spouse;
  • Property transferred by the decedent in exchange for adequate consideration;
  • Transfer of property made with the written consent of the surviving spouse;
  • The proceeds of any life insurance policy over the net cash surrender value of the policy;
  • Any life insurance policy on the decedent maintained as per a court order;
  • One-half of the decedent’s property to which certain community property laws apply and real estate that is subject to community property laws in the state in which it is located;
  • Property held in a qualifying special needs trust on the date of the decedent’s death;
  • Property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment;
  • The protected homestead of the decedent if the surviving spouse waived his or her interest in it or did not receive any interest in it upon the decedent’s death;

Valuing the Elective Estate

Generally, under §732.2095, the property’s value in the elective estate is the property’s fair market value on the applicable valuation date. In most cases, the valuation date is the date of the decedent’s death. In other cases, the valuation date may vary according to the nature of the property.  The default valuation date is the date that the surviving spouse came into possession of the property or the date of the decedent’s death, whichever comes later.

Time for Taking the Election

A surviving spouse has a limited time to take the elective share. Under §732.2135, a surviving spouse must file to take the elective share on or before the earlier of:

  • The date that is six months after the surviving spouse, his or her attorney in fact, or a guardian of his or her property, is served with a copy of the notice of administration of the decedent’s estate; or
  • A date that is two years after the date of the decedent’s death.

Within six months of being served with the notice of administration of the decedent’s estate or within 40 days of termination of any proceeding that affects the amount that the spouse is to receive under the elective share, whichever is later, the surviving spouse may petition the court for an extension of filing to take the elective share. In any event, a surviving spouse may request an extension no more than two years after the decedent’s date of death.

Additionally, a surviving spouse, his or her attorney in fact, guardian of property, or personal representative may withdraw his or her election within eight months of the decedent’s death and before the court’s order of contribution.

Look to Kramer Green for Assistance with Your Probate Case

A Florida probate lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. is prepared to represent your interests throughout the probate process. Inheritance issues may arise as you determine whether taking the spousal share is in your best interests. These issues may become quite complex and emotional. We have the experience needed to guide you through these issues and reach the best possible outcome in your case. Contact our office today at (954) 966-2112 or online to schedule a time to discuss your probate-related legal issues with our probate attorney.

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