Florida Elective Share: You Can't Cut Out Your Spouse

Florida Elective Share: You Can't Cut Out Your Spouse

Let's say you've been married for years, things aren't great, and you've decided to leave everything to your kids from a prior relationship. You update your will, you sign it, done. Your spouse gets nothing.

Except Florida doesn't work that way.

Under Florida law, your surviving spouse has the right to claim a portion of your estate regardless of what your will says. It doesn't matter if you were separated. It doesn't matter if you hadn't spoken in years. If you were legally married at the time of your death, your spouse has options, and one of them is powerful.

What Is the Elective Share?

Florida's elective share is codified in Florida Statutes Section 732.201 through 732.2155. The basic rule is this: a surviving spouse can elect to receive 30% of the deceased spouse's "elective estate" instead of whatever they were left in the will (or instead of nothing, if they were left out entirely).

That 30% figure sounds straightforward. The tricky part is understanding what counts as the "elective estate."

It's Not Just Your Probate Assets

Here's where people get surprised. The elective estate in Florida is not just what passes through your will. It includes a much broader pool of assets, defined under Florida Statutes Section 732.2035.

That pool can include:

• Assets held in a revocable living trust
• Accounts with payable-on-death or transfer-on-death designations
• Jointly held property
• Annuities and retirement accounts in some circumstances
• Gifts made within a certain period before death that were designed to reduce the elective estate
• Life insurance proceeds where the estate is the beneficiary

In other words, if you thought you could sidestep the elective share by putting everything in a trust or naming your kids as beneficiaries on your accounts, think again. Florida saw that coming and wrote the statute accordingly.

The Timeline Matters

The surviving spouse does not have unlimited time to decide. Under Florida Statutes Section 732.2135, the election must be filed within six months after the earlier of two dates: the date the surviving spouse was served with a copy of the notice of administration, or two years after the decedent's death.

Miss that window and the right is gone. Permanently. That's a serious deadline, and it's one of the many reasons families in the middle of a messy estate situation need to move quickly.

What Happens After the Election Is Filed?

Once the surviving spouse files the election, the estate has to figure out how to satisfy it. This is where things can get complicated and, sometimes, contentious. Other beneficiaries, including children from prior relationships, may find their inheritances reduced. Assets may need to be liquidated. Trustees of revocable trusts may be pulled into the process.

This is not a simple administrative step. It can turn into full-blown real estate litigation or broader estate disputes depending on what assets are involved and how the estate was structured.

Can You Plan Around the Elective Share?

Yes, but it has to be done correctly and in advance.

The most common approach is a prenuptial or postnuptial agreement where both spouses contractually waive their elective share rights. Under Florida Statutes Section 732.702, a spouse can waive the elective share in a written agreement signed by both parties. For that waiver to hold up, it generally needs to be entered into voluntarily, with each party having a reasonable understanding of what they're giving up.

This is not a document you want to download from the internet and fill out yourselves. If it's challenged later and found to be defective, the waiver disappears and you're back to square one.

Another option is careful estate planning that takes the elective share into account from the beginning, structuring assets in ways that minimize surprises. For blended families especially, this is not optional planning. It's essential.

If you haven't thought through how your estate is structured in light of your marriage, now is a good time to use our estate planning checklist to identify gaps in your current plan.

What If You're the Surviving Spouse?

If your spouse recently passed and you were left out of the will or received far less than you expected, the elective share may give you meaningful options. But you need to act fast given that six-month clock.

Before you sign anything, disclaim anything, or accept what the estate is offering, talk to an attorney. What you do in the early weeks of a probate proceeding can significantly affect your rights going forward. Understanding the probate timeline can help you know what's coming and when decisions need to be made.

Blended Families, This One's for You

If you have kids from a prior relationship and a current spouse, the elective share creates real tension in your estate plan. Your instinct may be to protect your children. Florida's law protects your spouse. Both can be true at the same time, but only if your plan is built to account for both.

There are tools available, qualified terminable interest property trusts, marital trusts, prenuptial agreements, structured beneficiary designations, that allow you to provide for a surviving spouse while still directing assets to your children. But these tools require intentional planning, not a generic will you signed ten years ago.

For a broader look at how trusts and wills interact in situations like this, our trust vs will guide is a good starting point.

Bottom Line

Florida law reflects a policy choice: surviving spouses deserve a baseline level of financial protection, and you cannot sign that away unilaterally in a will. If your current estate plan doesn't account for the elective share, and especially if you're in a blended family situation, there's a real risk that your plan won't work the way you think it will.

The time to fix that is now, not after you're gone and your family is fighting over it in probate court.