The spousal elective share in Florida can be a confusing issue in a Florida probate case. Adding to the complexity is the rare occurrence of elective share issues in Florida probate cases. Typically in a situation where the decedent (the person who died) leaves a will, the decedent will leave a certain portion of the estate to his or her spouse. When this happens, the spousal elective share is not needed, as long as they have left more than the minimum amount or the surviving spouse has signed a waiver of the elective share. However, in a situation where a decedent leaves his or her spouse too little, or nothing under a will, the spouse can use the spousal elective share to request the court to order that the estate make a distribution to the spouse. This ensures that the surviving spouse will receive something from the deceased spouse’s estate, even if the deceased spouse did not want the surviving spouse to receive anything.

What is the spousal elective share?

Under section 732.201, Florida Statutes, “The surviving spouse of a person who dies domiciled in Florida has the right to a elective estate of the decedent as provided in this part, to be designated the elective share.” Under Section 732.2065, Florida Statutes, the elective share “is an amount equal to 30 percent of the elective estate.” The issue of what is the elective estate is where things get interesting.

What is the elective estate?

In order to determine the elective estate, you need to look at three statutes, section 732.2035, Florida Statutes, section 732.2055, Florida Statutes, and section 732.2045, Florida Statutes.

Section 732.2035, Florida Statutes sets out the property that enters into the elective estate. The elective estate in made up of the following property of the decedent:

1. The probate estate.
2. The decedent’s protected homestead property.
3. The decedent’s interest in accounts that contain a designated beneficiary, such as a transfer on death or pay on death beneficiary.
4. The decedent’s interest in property that is owned as joint tenants with rights of survivorship or tenancy by the entireties.
5. Property that is contained in a revocable instrument at the time of the decedent’s death. This includes property that was contained within a revocable trust at the time of the decedent’s death.
6. Certain types of trusts and annuities.
7. The decedent’s interest in a net cash surrender value of a life insurance policy before the decedent’s death.
8. The rights of a person to be paid under the decedent’s pension plan or other retirement instrument. This part of the elective estate basically includes the value of any death benefit provided to a person by the decedent’s pension or other retirement plan.
9. Specific property that was transferred within a 1 year period prior to the death of a decedent. This property can be complex, so this is where your attorney will do some research to determine if any of this property is part of the elective estate.

The most important part of section 732.2035 is that it includes assets that pass outside of probate. Therefore, a surviving spouse may be entitled to assets that are outside of the probate estate through the elective share.

Section 732.2045, Florida Statutes sets out the property that is always excluded from the elective estate. Property that is excluded from the elective estate can include:

1. If the property was transfer of property is irrevocable.
2. The property was sold by the decedent for a reasonable amount or exchange.
3. Transfers made with the written consent of the decedent’s spouse.
4. The proceeds of a life insurance policy in excess of the net cash surrender value of the policy.
5. Any life insurance policy for the decedent that was purchased according to a court order.
6. Other additional, less common instances when property will be excluded from the elective estate.

Section 732.2055, Florida Statutes sets out the methods used for valuing the property of the elective estate. The valuation of the property of the elective estate is important because the spouse will want to receive the greatest amount out of his or her 30 percent portion. The other beneficiaries of the estate will want the valuation to be lower because that may in effect decrease the portion of the estate to be provided to the surviving spouse. It is important that a beneficiary be represented by an attorney where the spousal elective share is an issue to ensure that a fair valuation of the assets of the elective estate is achieved.

What is the amount of the elective share?

Under section 732.2065, Florida Statutes, the amount of the elective share is 30 percent of the elective estate. Therefore, if you are a spouse seeking the elective share, it is important to receive a fair valuation of the elective estate, since the amount received under the elective share is dependent on the value of the elective estate.

When should a surviving spouse pursue the elective share in a Florida probate case?

Any spouse who believes he or she may be entitled to the elective share should consult with a Florida probate attorney as soon as possible. A spouse is generally recommended to pursue his or her elective share rights when the deceased spouse’s will does not provide for payment of at least 30 percent of the decedent’s elective estate. However, like most decisions in probate, a spouse can elect to not pursue the elective share. This is a decision that a spouse should consider with his or her attorney.

One situation where a surviving spouse may decide to pursue the elective share is when a deceased spouse leaves the surviving spouse out of his or her will. In these instances, the surviving spouse may believe that he or she will get nothing from the deceased spouse’s estate. This is not true. If the surviving spouse properly pursues the elective share, the surviving spouse will receive 30 percent of the elective estate.

It is also important to remember that the elective estate includes assets that have been arranged so that the assets pass outside of probate. Property that the decedent owns as a joint tenant with right of survivorship, accounts with designated beneficiaries, and assets in a revocable trust owned by the decedent all qualify as the elective estate. Therefore, if a surviving spouse does not receive any property from a deceased spouse, and all the property passes outside of probate, the surviving spouse is still entitled to the elective share. If you think that you may be entitled to the elective share, contact an attorney right away. When assets pass outside of probate, speed is of the essence because the recipients of the assets may take action to make it more difficult to track them down.

What is the time limit for pursuing the elective share?

It is important to remember that there are limitations to pursuing the elective share in a Florida probate case. Under section 732.2135(1), Florida Statutes, “[T]he election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the decedent’s death.” Therefore, a petition for the elective share must be filed within 2 years of the decedent’s death, or within 6 months of the time that a spouse is served with notice of administration in the probate case. Under certain circumstances, an extension of time may be granted by the court for the surviving spouse to file the petition for elective share. However, it is always best to make sure that the original time limits are complied with, unless there is some extenuating circumstances that may require an extension.

Contact us today if are a beneficiary in a Florida probate case and think you may be entitled to the spousal elective share.

If you think you may be entitled to the elective share, or if you believe that moving for the elective share may be in your best interests as a beneficiary in a probate case, you should retain an attorney to represent you. The issues relating to the elective share are complex, and having an attorney is the best way to make sure that you are put in the best position to succeed. Contact us today to schedule a free consultation with one of our attorneys. At the consultation, one of our attorneys will discuss your case with you, review any probate documents relating to the case, and may be able to give you a better understanding of your rights in the case.