Florida Elective Share: Surviving Spouse's 30% Right

Fla. Stat. § 732.201 — surviving spouse's statutory right to 30% of the elective estate

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The Florida elective share is a statutory right of a surviving spouse to claim 30% of the elective estate regardless of what the deceased spouse’s will provides. Created by Fla. Stat. § 732.201 et seq., the elective share prevents one spouse from completely disinheriting the other — even with a properly executed will, the surviving spouse can elect to take their statutory share instead of (or in addition to) whatever the will provides.

Florida Elective Share — Frequently Asked Questions

What is the elective share in Florida?

Florida’s elective share, under Fla. Stat. § 732.201 et seq., is a surviving spouse’s statutory right to claim 30% of the deceased spouse’s ‘elective estate’ regardless of the will’s provisions. It prevents one spouse from disinheriting the other. The elective estate includes the probate estate PLUS certain non-probate assets (revocable trust assets, joint accounts, POD accounts, life insurance owned by the decedent, retirement accounts, gifts within 1 year of death) under Fla. Stat. § 732.2035.

How does a surviving spouse claim the elective share in Florida?

The surviving spouse must file an election with the probate court within the earlier of (a) 6 months after service of the Notice of Administration OR (b) 2 years after the decedent’s death (Fla. Stat. § 732.2135). Late elections are barred. The election is irrevocable once accepted. Once elected, the court appoints a ‘guardian ad litem’ if minor beneficiaries are affected and apportions the share from the elective estate.

What assets are in the elective estate in Florida?

The Florida ‘elective estate’ under Fla. Stat. § 732.2035 includes: (1) the probate estate; (2) the decedent’s interest in property in a revocable trust; (3) joint bank accounts with right of survivorship (decedent’s contribution); (4) POD/TOD accounts; (5) life insurance proceeds (if decedent owned the policy); (6) retirement accounts (401(k), IRA, pension); (7) certain transfers within 1 year of death; (8) property over which the decedent had a power of appointment. Excludes: homestead, exempt property, life insurance proceeds to specific named beneficiaries (in some cases), and irrevocable trust transfers more than 1 year pre-death.

Can the elective share be waived in Florida?

Yes. A spouse can waive the right to the elective share by a written agreement signed during marriage (Fla. Stat. § 732.702) — typically in a prenuptial agreement or postnuptial agreement. The waiver must be voluntary, with fair disclosure of assets, and not unconscionable. Florida courts will set aside waivers that fail these requirements. A waiver can be partial (waive elective share but not homestead) or total.

How much is the elective share in Florida?

30% of the elective estate. The percentage is fixed under Fla. Stat. § 732.2065 — it doesn’t vary by length of marriage, number of children, or other factors. The dollar amount varies dramatically depending on the size of the elective estate. For a $1 million elective estate, the spouse’s share is $300,000. The share is calculated AFTER certain debts and exemptions, so the surviving spouse may not receive exactly 30% of the gross elective estate.

What if the surviving spouse is already getting more than 30% under the will?

Then the elective share doesn’t help. The spouse can choose to take what the will provides (which is more) instead of electing. The election is meant to provide a floor of protection — not to reduce what a generous will already provides. Spouses analyze the math before electing because the election is irrevocable and may include trade-offs (giving up homestead rights, giving up specific bequests, etc.).

Does the elective share apply if there's no will in Florida?

It generally doesn’t add anything in intestate cases because the surviving spouse already receives substantial property under Florida intestate succession (Fla. Stat. § 732.102) — either 100% or 50% depending on whether descendants exist. If the intestate share is less than the elective share (rare but possible in complex blended-family situations), the spouse can elect.

Can the elective share be defeated in Florida?

Florida has strong anti-evasion rules. Transfers made within 1 year of death to defeat the elective share are usually included back in the elective estate (Fla. Stat. § 732.2035(2)). Irrevocable trusts created more than 1 year pre-death are generally excluded — but the trust must be a bona fide transfer (not a sham). Pre-marriage transfers are excluded. The strongest defense against an elective share is a valid waiver in a prenuptial or postnuptial agreement.