TL;DR: Your late spouse's will tried to cut you out? Tough. Florida law gives a surviving spouse the right to claim an "elective share", 30% of the elective estate, a pool far broader than the probate file. This law acts like a battering ram, smashing through the will and reaching assets you might think are untouchable, like revocable trusts and certain retirement accounts, so a spouse is not left with nothing.
You think a will is the final word? Think again. In Florida, when a will tries to disinherit a spouse or leave them a pittance, the law has its own final say. It's called the elective share, and it's a statutory sledgehammer that can shatter a decedent's carefully laid plans. It doesn't matter what the will says, how big the font is, or how many times it's underlined. The law will carve out a mandatory share for the surviving spouse. Most people find this out the hard way, sitting in a lawyer's office after the funeral, learning that the "final wishes" they just heard read aloud are about to be bulldozed by statute.
The elective share exists because Florida law doesn't permit you to quietly disinherit a spouse. Marriage is a legal contract with obligations that don't just vanish at death. If you've been written out of a will or left an insultingly small inheritance, you have a powerful claim under Florida Statute 732.201, and the amount of that claim, 30% of the "elective estate", is set by Florida Statute 732.2065. That elective estate is a broad pool of assets that goes far beyond what's in the will. It includes revocable trusts, certain joint accounts, retirement plans, and the cash surrender value of life insurance on the decedent's life. This isn't a gift or a request. It's a statutory right that forces a redistribution of assets, whether the other beneficiaries like it or not.
What the Elective Estate Includes
The elective estate is a legal dragnet designed to pull in nearly everything the decedent controlled. Florida Statute 732.2035 defines it broadly to shut down clever tricks meant to sidestep a spouse's rights. This statutory basket sweeps in:
- All probate assets passing under the will or by intestate succession
- Assets held in a revocable trust, even if it was created to avoid probate
- Property held jointly with a right of survivorship, like a house or bank account (the decedent's fractional share)
- Death benefits from annuities and retirement accounts payable to someone other than the spouse, and the cash surrender value of life insurance on the decedent's life immediately before death
- Certain property transferred within one year of death
- Property transferred during the marriage where the decedent kept the right to income, use, or the power to revoke
The law is built to crush end-runs. Naming a child as the sole beneficiary on a $2 million IRA while leaving your spouse $10,000 in the will won't work. That IRA is part of the elective estate. Moving the house into a trust years before death may not work either, depending on who still held the strings. Florida law attacks the decedent's entire dispositive scheme, not just the scraps left in the probate file.
Who Can Claim the Elective Share
Only the legal surviving spouse gets this right. It is personal and must be exercised quickly: within six months after being served with a copy of the notice of administration, or within two years of death, whichever comes first. Florida does not recognize common-law marriages entered into in this state after 1967, so living together for 50 years means nothing if you never got a marriage license. The right is also dead on arrival if you waived it in a valid prenuptial or postnuptial agreement.
A spouse who unlawfully and intentionally kills the decedent forfeits everything under Florida's "slayer statute," Florida Statute 732.802. Short of that, the right is nearly bulletproof. It doesn't matter if you were estranged for years, living in different states, or even if one of you committed adultery. Unless a judge entered a final judgment of dissolution of marriage before the date of death, you are still the spouse. The law doesn't care about the quality of your marriage; it only cares about your legal status on the day your spouse died.
How the Election Works in Practice
Claiming your share is close to a one-way street. You file the election in the probate court, and while a court can permit a withdrawal in limited circumstances, you should plan on being locked in the moment you file. The estate's personal representative has to calculate the total elective estate, figure out the 30% share, and then credit anything you already received. If you were on a joint account worth $100,000 and the will left you $50,000, but your 30% elective share comes out to $300,000, the estate still owes you another $150,000. That money comes first from property that would otherwise pass through probate or a revocable trust, and if that's not enough, the law reaches the beneficiaries of non-probate assets.
This is where things get ugly. The decedent who left his entire estate to his adult children from a first marriage probably thought that was the end of it. When the second spouse elects against the will, the children's inheritance gets slashed. If the probate estate is small, beneficiaries of trusts, life insurance, and retirement accounts will be forced to contribute. They thought their inheritance was safe, but now they're getting a bill. The estate administration grinds to a halt and becomes a bitter fight over who pays the price for the decedent's bad planning.
For blended families, the elective share is a bomb waiting to go off. A testator who remarries late in life and wants to protect assets for their own children has to plan for this. A will alone is not enough. Our Florida estate planning attorneys prevent these disasters with airtight marital agreements and properly drafted trusts. But after death, the planning options are gone. Litigation over the elective share is a brutal, expensive, and emotionally draining war that no one really wins.
Limits and Exceptions to the Elective Share
Some assets get treated differently. Florida's constitutional homestead protection is the big one. If your deceased spouse was survived by you and any descendants, the homestead can't be freely devised in a will. By default you receive a life estate, the right to live there for life, and the descendants take the remainder. But you are not stuck with that: under Florida Statute 732.401, you may instead elect to take a one-half interest in the homestead as a tenant in common with the descendants, so long as you make that election within six months after the decedent's death and follow the statute's filing requirements. That homestead election is a separate right from the elective share, and homestead property is still valued and counted in the elective estate under the statutory rules, so coordinate the two decisions with counsel before you pick one.
Property owned as tenants by the entirety is treated differently too, because it passes automatically to the surviving spouse; only half of its value counts toward the elective estate, and what you already own outright is credited against your share. The elective share is designed to capture assets the decedent controlled alone or tried to shuffle away from the marriage.
Qualified retirement plans governed by the federal law known as ERISA carry their own spousal protection rules, which generally require a spouse's written consent before someone else can be named beneficiary, and federal law can preempt conflicting state rules. IRAs and other non-ERISA accounts have no such consent requirement, and their death benefits are pulled into the elective estate when the beneficiary is someone other than the spouse.
Self-Settled Trusts and the Look-Back on Transfers
Florida law has a special rule for irrevocable trusts the decedent created during the marriage while keeping some benefit or control. If your spouse moved assets into a so-called "asset protection trust" but could still receive money from it, that trust property is likely part of the elective estate. The statute also reaches certain transfers made within one year of death, and it applies special valuation rules to interests the decedent retained, so any fancy trust-based maneuvering in the years leading up to death will face intense scrutiny. These provisions exist to gut last-ditch efforts to hide wealth from a spouse.
These disputes often turn into forensic battles over the value and control of trust assets. Appraising a trust filled with private business interests or unique real estate is a challenge. Proving the decedent had enough control to pull the trust into the elective estate is a fact-intensive fight that requires deep dives into financial records and trust operations. As the surviving spouse, you carry the burden of building that record. The estate will fight you every step of the way. This is not a DIY project; it's high-stakes litigation.
Closing Remarks
If you've been cut out of a will, left less than you deserve, or suspect your late spouse was moving assets to disinherit you, you need to act fast. The deadline to claim your elective share is brutally short, and the stakes are enormous. Brandon Legal Group doesn't just explain the law; we enforce your rights. We represent surviving spouses making their claim and beneficiaries who need to defend the estate's plan. Contact us now to calculate the elective estate, assert your rights, and fight for what is legally yours before the window slams shut.
Frequently Asked Questions
Can a spouse waive the elective share before marriage?
Yes. A properly drafted prenuptial agreement that explicitly waives elective share rights is the most common way to block the claim. Under Florida Statute 732.702, a waiver signed before marriage does not require financial disclosure, but a waiver signed after the marriage does, and no waiver survives if it was obtained by coercion. A postnuptial agreement can accomplish the same thing when it meets those requirements. Without a clear, written waiver, the right to the elective share remains intact, no matter what the will says.
Does the elective share apply if we were separated but not divorced?
Yes. Being separated means nothing in the eyes of this law. If you were still legally married when your spouse died, you have the right to elect. A separation agreement doesn't cut it unless it contains a valid waiver of your spousal rights. Filing for divorce doesn't cut it either. Only a final judgment of dissolution of marriage, entered before the death, terminates your status as a spouse.
How long does a surviving spouse have to file an elective share claim?
The clock is ticking. Under Florida Statute 732.2135, you must file within six months after being served with a copy of the notice of administration, or within two years of the date of death, whichever comes first. A court may extend the deadline in limited circumstances if you petition before it expires, but do not count on it. Filing the election is just the first step; litigating and collecting the share can take much longer.
What happens if the estate cannot pay the elective share from probate assets alone?
When the probate assets run dry, Florida Statute 732.2075 sets the order in which other property is tapped. Beneficiaries of revocable trusts, life insurance proceeds, retirement accounts, and joint accounts may be ordered by the court to contribute a portion of what they received to satisfy your claim. This is a shock to beneficiaries who thought their money was safe, and it often leads to brutal court fights.
Can a spouse elect against a trust that was irrevocable during the decedent's life?
Possibly. It's a complex fight that depends on the exact terms of the trust and when it was created. If the decedent kept the right to income, use, or benefit from the trust, its assets can be pulled into the elective estate under Florida Statute 732.2035. Transfers made within one year of death draw particular scrutiny. A truly irrevocable trust where the decedent gave up all strings long ago is harder to attack, but it still requires a deep legal and factual analysis. Never assume trust assets are shielded.
References
- Florida Statutes § 732.201. Right to elective share.
- Florida Statutes § 732.2065. Amount of the elective share.
- Florida Statutes § 732.2035. Property entering into elective estate.
- Florida Statutes § 732.2075. Sources from which elective share payable; abatement.
- Florida Statutes § 732.2135. Time of election; extensions; withdrawal.
- Florida Statutes § 732.401. Descent of homestead.
- Florida Statutes § 732.702. Waiver of spousal rights.
- Florida Statutes § 732.802. Killer not entitled to receive property or other benefits by reason of victim's death.
- Fla. Const. art. X, § 4. Homestead; exemptions.