What is Florida’s Elective Share Rule?

When you are trying to handle the death of a loved one, trying to figure out the legal issues related to wills, estates, and other financial issues can be challenging, especially when it comes t the elective share rule. The Florida probate lawyers of Kramer, Green, Zuckerman, Greene & Buchsbaum P.A. can answer your questions and calm your concerns in this situation. In addition, we can handle any needed probate court proceedings on your behalf while you focus on your family’s needs during this extraordinarily difficult time.

Understanding the Elective Share Rule in Florida

Florida’s elective share rule offers a safety net for individuals whose deceased spouses have left them only a small portion of their estate or even cut them out of their will altogether. It guarantees these surviving spouses a minimum percentage of their deceased spouses’ estates, despite attempts to disinherit them or provide them with only a small inheritance.

The Elective Estate

Under Florida law, the surviving spouse’s elective share is 30% of the estate. However, some property that isn’t part of the estate is considered in calculating the elective share; this larger pool of property is known as the “elective estate.” Florida Statute § 732.2035 includes the following property as part of the elective estate:

  • The probate estate
  • The deceased spouse’s interest in any protected homestead property
  • The deceased spouse’s interest in any accounts or securities that would pass outside the probate estate, such as payable-on-death or co-ownership with rights of survivorship accounts
  • The deceased spouse’s fractional interest in any property co-owned as joint tenants with rights of survivorship or tenants by the entireties
  • Property transferred before death, if revocable
  • The deceased spouse’s interest in the net cash surrender value of any life insurance policy as of the time just before death
  • Benefits under any public or private pension, retirement, deferred compensation plan, or similar arrangement, excluding Railroad and Social Security benefits
  • Certain property fraudulently transferred within one year of the deceased spouse’s death

The Net Elective Estate

The net elective estate is the elective estate after all debts of the estate are paid. However, the elective share takes precedence over bequests to others and administration costs.

Property that Makes Up the Elective Share

Florida Statute § 732.2075 also designates the order in which available assets are applied to reach the surviving spouse’s 30% elective share of the estate. Generally, the elective share comes from the following assets that are already in the possession of or payable to the surviving spouse:

  • Property included in the elective estate that passes to the surviving spouse or already has been passed to the surviving spouse
  • Pension, retirement, and related benefits
  • Life insurance proceeds payable to the surviving spouse
  • Property held in trust for the benefit of the surviving spouse

If there is insufficient property in these categories to reach the 30% elective share, then property that otherwise would have been distributed to others, or, in some cases, that already was distributed to others, goes to make up the remainder of the elective share. This property would first come from the probate estate and proportionally from all beneficiaries.

Who is Entitled to the Elective Share?

The elective share is available to a surviving spouse, regardless of the duration of the marriage, whether it was a first, second, or subsequent marriage, and whether the spouses were estranged or separated at the time of the spouse’s death. Unless the spouses were legally divorced at the time of the spouse’s death, the surviving spouse is entitled to the elective share under state law.

The only way to get around the elective share when you remain legally married is to have your spouse waive it through a legally valid prenuptial or postnuptial agreement. Absent this type of agreement, any other legal maneuvering is likely to be insufficient to prevent the surviving spouse from exercising the right to the elective share. The right to the elective share will typically override provisions that the deceased spouse previously made in a will, trust, or joint ownership of property. If the deceased spouse had no will, then the laws of intestate succession govern the distribution of property; generally, a surviving spouse will receive a greater share of property through intestate succession than by opting for the elective share of the estate.

Contact Kramer Green for Assistance with Your Probate Matter

The Florida probate attorneys of Kramer, Green, Zuckerman, Greene & Buchsbaum P.A. are ready to help you and your family through every step of the probate administration process. We know how to best handle these proceedings to make them as efficient, simple, and straightforward as possible to meet your family’s goals.

Our objective is to handle the complex legal matters that an estate administration can involve on your behalf while you and your family focus on dealing with the loss of your loved one. Contact our office today at (954) 966-2112 or reach out to us online to schedule a time to discuss your legal estate issues with our attorneys.

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