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Overview Of Florida’s Spousal Elective Share Statute


Some of the most dramatic moments in film or TV occur when the long-suffering, surviving spouse finds out that he or she has been cut out of the will. While these scenes make for great entertainment, you would be devastated to find yourself in this type of real-life scenario. Being eliminated from your spouse’s will does not affect the joint assets you owned together, but disinheritance can be an unwelcome, unpleasant surprise.

Fortunately, Florida probate laws include a provision that aims to relieve some of the financial strain a surviving spouse may sustain after being left out of the will: The spousal election. A Dade City probate lawyer can explain how the statute applies to your situation, but it is useful to review some general information about the spouse’s right to elective share. 

Basics of the Elective Share 

In short, Florida’s probate code section on the spousal election provides that the surviving spouse may claim a percentage of a decedent’s estate regardless of what the will says. Essentially, by exercising the right to elective share, the widow or widower is overriding the disinheritance section of the will. The duration of the marriage is not a factor, but keep in mind that it is possible to waive the elective share in a properly executed prenuptial agreement. The effect is that the surviving spouse cannot exercise this option upon the other’s death.

The elective share amount is 30 percent of the deceased spouse’s estate, though there are additional assets that will be included for purposes of determining the elective estate. For instance, in addition to real estate and personal property that would go through the probate process, the elective estate pool comprises:

  • Ownership interests in homestead property;
  • Assets held jointly with right of survivorship;
  • Pay-on-death accounts and assets with a designated beneficiary;
  • Life insurance proceeds;
  • Funds from retirement, pension, or related plans; and
  • Assets the deceased spouse fraudulently transferred within 12 months prior to death. 

Process for Effecting the Spousal Elective Share 

A surviving spouse must claim the election by filing the proper documents with the probate court where estate administration is proceeding. There are two deadlines to note, so you must file your paperwork within:

  1. Six months from the date you received notice of estate administration, i.e., when the probate was opened; OR
  2. Two years after your deceased spouse’s death.

Once you file the spousal election documents, other interested parties will have the opportunity to object to the right of election, the amount of the elective estate, the amount of the distribution to the  surviving spouse, and other factors. 

Learn More by Consulting with a Florida Probate Attorney 

This overview may be useful in explaining the basic concepts behind the spousal elective share in Florida, but the details are much more complex. Whether you are the surviving spouse or a beneficiary whose inheritance is affected by the election, solid legal representation is essential. For more information, please contact The Law Office of Laurie R. Chane to set up a consultation. You can reach our location in Dade City, FL by calling 352-567-0055.



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