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The Florida Elective Share Statute


In order to protect the surviving spouse of a person who passes away in Florida, the state has what is called an elective share statute, granting the surviving spouse a share of their deceased spouse’s estate so the surviving spouse is not disinherited. Florida law states that the surviving spouse is entitled to an “elective share,” which is equal to 30 percent of the ‘elective estate.’ While this seems relatively straightforward, issues surrounding the elective share can become quite complex, and there are many types of disputes that can arise. If you have questions about the elective share statute, it is generally a good idea to contact an experienced attorney.

Disputes Often Arise

While the law is very clear about how much of the elective estate should be granted to a surviving spouse, it is less clear about what exactly is part of the elective estate. The statute lists examples of property that may be part of the elective estate – those include revocable trusts, joint bank accounts, pensions and retirement accounts, and any property that directly passes to the surviving spouse – but it does not necessarily define its outer limits, meaning that in some cases there may be dispute about whether assets are actually part of the elective estate or not. Keep in mind that in most cases, property designated as a Florida homestead is included in the elective estate after the 2017 revisions to the statute.

If a surviving spouse is scheduled to receive more than 30 percent of the elective estate by the operation of law – for example, if joint property passes to the surviving spouse, as the law requires, and the value is more than 30 percent of the estate – the surviving spouse will not be entitled to any further property. However, if the acquired property is less than 30 percent of the estate, the surviving spouse is entitled to receive more, and can petition the court to ensure that this occurs.

Elective Share Can Be Waived

While a surviving spouse generally elects to take the elective share in most cases, there are situations in which it can be waived, provided the waiver is in writing. The most common situation in which a surviving spouse will waive their elective share right occurs when the surviving spouse receive 30 percent or more of the estate pursuant to the decedent’s will – in essence, there is nothing more to take. However, most of the time a surviving spouse will elect to take their statutory 30 percent elective share, simply to guarantee themselves what they feel is an appropriate amount of the decedent’s estate.

Be advised that if you are debating whether or not to take the elective share after your spouse’s death, you only have a short time frame in which to do it. The law states that you must file by whichever date comes first: 6 months after receiving a copy of the notice of administration (the notice of the opening of the decedent’s probate estate), or 2 years from the date of the decedent’s passing.

Call A Florida Estate Planning Attorney

If you have just lost your spouse, it may feel inappropriate to think about money. However, your spouse would want you to be taken care of, and it is your right to try and claim your share to ensure it. A Naples estate planning attorney at Nici Law Firm can help answer any questions you may have about the elective share rules or any other aspects of probate. Call us today at (239) 449-6150 or use our web form to schedule an initial consultation.


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