In Florida, getting a divorce is not as easy as simply saying “I divorce thee; I divorce thee; I divorce thee.”  Similarly, disinheriting your spouse is not as easy as simply writing them out of your will.  Although it is widely accepted than an individual has the freedom to dispose of their property in any way they see fit, in Florida, a testator (or the one making a will) cannot leave their spouse with nothing by disinheriting their spouse in their will.  Florida protects a surviving spouse by utilizing the “elective share.”  Fla. Stat. § 732.201 benefits the surviving spouse by allowing them to choose between what is left to them in their deceased spouse’s will or a statutorily determined portion of their deceased spouse estate.  This means that a surviving spouse has the right to choose between inheriting either: (1) a percentage of their spouse’s estate that is determined by state legislatures or (2) whatever is left to them in the will.


What is the elective share in a Florida probate administration?

Currently, the elective share in Florida is 30 percent of the deceased spouse’s “elective estate.”  Since not every asset is considered part of the “elective estate,” only certain items will be considered while calculating how much a surviving spouse is entitled to.  Fla. Stat. § 732.2035 indicates that assets such as: (1) the entire probate estate; (2) accounts held with the right of survivorship, like “Pay On Death,” “Transfer On Death,” or “In Trust For” accounts; (3) fractional property interest held either in joint tenancy with the right of survivorship or tenancies by the entireties; (4) other revocable transfers; (5)  life insurance policies listing the deceased spouse as  the beneficiary; (6) retirement, pensions, or social security benefitting the surviving spouse; and (7) certain property transferred within the preceding year will be considered while considering how much a surviving spouse is entitled to.  However, the elective estate does not include assets such as: irrevocable transfers made before marriage; (2) legitimate, fair market transfers; (3) transfers with spousal consent; (4) life insurance proceeds; (5) other property held in other jurisdictions that apply a “community property” standard; (6) Property held in special needs trust; (7) property withheld for estate taxes; and (8) property qualifying as  protected homestead if the surviving spouse waived their homestead rights and received no interest in the homestead upon the decedent’s death.


How is the elective share calculated?

If a surviving spouse chooses to take their share of the elective estate, their elective share amount will be reached via “abatement” or reducing other interests in the will are reduced until the amount of the elective share is reached.  In Florida, the order of abatement starts by reducing the amount of any property the spouse receives.  If the amount of the elective estate remains unfulfilled, then the deceased spouse’s probate estate and the revocable trusts will be proportionally depleted until the elective share is satisfied.  If the elective share is still not satisfied, then other property interests will also be proportionally depleted until the elective share is satisfied.


If you are a surviving spouse, or have questions about the elective share, contact us today to schedule a free consultation.

The Florida spousal elective share is very complex. If you are the surviving spouse, or the person entitled to act as personal representative for someone who died leaving a spouse,  contact us today to schedule a free consultation. During our consultation one of our attorneys can go over the probate process with you and may be able to answer any questions you may have about the elective share and whether you may qualify for it.

Written by: Stephanie Mas, Stetson University College of Law, Class of 2019
Edited by: John Richert, Esq. and Patrick Quarles, Esq.

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