Many people assume that a will gives them complete control over who inherits their property. In Florida, that is not true when it comes to a spouse. Florida law gives a surviving spouse a powerful statutory right called the elective share — the right to claim a fixed percentage of the deceased spouse's estate even if the will or trust leaves them out entirely.
This protection exists to prevent one spouse from being financially abandoned at death. Understanding it is essential for blended families, second marriages, and anyone whose estate plan does not leave everything to their spouse.
What Is the Florida Elective Share?
The elective share is the surviving spouse's right to receive 30% of the elective estate (F.S. § 732.2065), regardless of what the deceased spouse's will or revocable trust provides. The spouse must affirmatively elect to take this share by filing with the probate court; it is not automatic.
What Counts as the "Elective Estate"?
This is where Florida's law has real teeth. The elective estate (F.S. § 732.2035) is deliberately broad so that a spouse cannot be disinherited simply by moving assets out of probate. It generally includes:
- The decedent's probate estate
- Property held in a revocable living trust
- The decedent's interest in jointly held accounts and property
- Payable-on-death and transfer-on-death accounts
- The net cash surrender value of life insurance on the decedent's life
- Amounts payable from retirement accounts and pension plans
- Certain property transferred by gift within one year before death
Because so many "probate-avoidance" assets are pulled back into the elective estate, the common strategy of titling everything in a trust or in joint name does not defeat a spouse's elective share.
The Election Deadline
The surviving spouse must file the election within a strict window. Under F.S. § 732.2135, the deadline is the earlier of:
- Six months after the spouse is served with the notice of administration, or
- Two years after the date of the decedent's death.
Missing the deadline generally waives the right. The spouse (or their attorney or guardian) must act promptly.
How a Spouse Can Be Validly Disinherited
The only reliable way to limit or eliminate a spouse's elective share is a valid marital agreement — a prenuptial or postnuptial agreement in which the spouse knowingly waives these rights (F.S. § 732.702).
| Agreement Type | When Signed | Financial Disclosure |
|---|---|---|
| Prenuptial agreement | Before marriage | Full disclosure not strictly required for waiver, but strongly recommended |
| Postnuptial agreement | After marriage | Fair and reasonable financial disclosure generally required |
A valid waiver can give up not only the elective share, but also homestead rights, the intestate share, family allowance, and the right to serve as personal representative — though each must be addressed clearly in the agreement.
What the Elective Share Does Not Override
The elective share is separate from — and in addition to — other spousal protections under Florida law, including:
- Homestead rights — constitutional protections on the marital residence
- Family allowance — up to $18,000 for support during administration (F.S. § 732.403)
- Exempt property — certain household furnishings and vehicles (F.S. § 732.402)
- Pretermitted spouse share — protections for a spouse married after the will was executed (F.S. § 732.301)
Frequently Asked Questions
Related Reading
- Estate Planning for Married Couples in Florida — coordinating wills, trusts, and spousal rights.
- Florida Homestead Exemption & Estate Planning — the separate constitutional protections that limit how you can leave your home.
- What Happens If You Die Without a Will in Florida? — how intestacy law divides assets between spouse and descendants.
Plan for Your Spouse — and Your Children
Blended families and second marriages need an estate plan that accounts for Florida's elective share, homestead rules, and spousal protections. Cornerstone designs plans that honor your intentions while staying enforceable under Florida law.
Start Your Florida Estate Plan →This article is for general informational purposes and does not constitute legal advice. Spousal rights and marital agreements are highly fact-specific. Consult a licensed Florida attorney regarding your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida.