Florida’s Elective Share: Why a Surviving Spouse Can Claim 30% Even If the Will Says Otherwise

A Florida will cannot disinherit a spouse. Someone can write a will leaving everything to their children, a charity, or a friend, and the surviving spouse still has the right to claim a portion of the estate.

That right is called the elective share, and it equals 30 percent. The figure itself is simple. What trips people up is the pool that 30 percent is measured against, which reaches well beyond the assets passing under the will.

What the Elective Share Protects Against

Florida adopted the rule so that one spouse cannot leave the other with nothing. It applies no matter how long the marriage lasted and regardless of what the will or trust directs.

It also stacks with other protections. Florida homestead rights, exempt property, and the family allowance come in addition to the elective share, not out of it.

The Elective Estate Is Much Bigger Than the Probate Estate

This is where most planning goes wrong. People assume that moving assets out of probate moves them out of reach. Florida closed that door deliberately.

The elective estate includes the probate estate plus a long list of assets that never see a courtroom:

• Property in a revocable living trust
• Pay-on-death, transfer-on-death, and in-trust-for accounts
• Jointly held property with survivorship rights, including tenancy by the entirety
• The net cash surrender value of life insurance owned by the decedent
• Amounts payable to survivors under pension and retirement plans
• Property given away during the year before death

Funding a revocable trust is sound planning for many reasons, and avoiding probate is one of them. Defeating a spouse’s elective share is not among them.

A Floor, Not a Bonus

The phrase “claim 30 percent” suggests an extra payment on top of whatever the will already provides. That is not how it works.

Property already passing to the surviving spouse is applied first toward satisfying the share. If a will leaves the spouse half the estate, there is nothing to claim, because half exceeds 30 percent. The election only matters when the spouse would otherwise receive less than the statutory minimum. It sets a floor.

The Deadline Is Short

An election has to be filed with the probate court, and the window closes quickly. The deadline is the earlier of two dates: six months after the notice of administration is served on the surviving spouse, or two years after the date of death.

Note the word earlier. Both clocks run at once, and whichever expires first ends the right. A spouse may petition the court for an extension, but the two-year mark after death functions as a hard outer limit.

An election can also be withdrawn within eight months of the death, before the court enters its order of contribution, which gives a spouse room to reconsider after learning more about what the estate actually holds.

Can the Right Be Given Up?

Yes. A spouse may waive elective share rights, in whole or in part, through a written agreement signed in the presence of two subscribing witnesses. This typically appears in a prenuptial or postnuptial agreement.

The formalities matter. An agreement signed after the marriage requires fair disclosure of each spouse’s estate to the other. Courts have thrown out waivers that fell short of the statutory requirements, so an old agreement pulled from a file drawer deserves a fresh look rather than an assumption that it still holds.

Where This Shows Up Most

Second marriages are the common setting. Someone remarries later in life, intends their will and trust to pass everything to children from a first marriage, and never addresses the new spouse’s statutory rights. The plan looks complete on paper and collapses the moment an election is filed.

Attorney Bill O’Leary discusses planning considerations for remarried couples in this video: How to Navigate Estate Planning After a Second Marriage.

Key Takeaways

• A spouse cannot be disinherited: Florida grants a surviving spouse 30 percent of the elective estate regardless of the will.
• Non-probate assets count: Revocable trusts, POD accounts, joint property, and retirement benefits are part of the calculation.
• It functions as a minimum: Property already passing to the spouse is applied toward satisfying the share.
• Timing is unforgiving: The election is due by the earlier of six months after service of the notice of administration or two years after death.
• Waiver is possible: A written agreement with two subscribing witnesses can waive the right, if the formalities are met.
• Other rights are separate: Homestead, exempt property, and family allowance come in addition.

Build the Spouse’s Rights Into the Plan

Planning around the elective share in Florida can be done, but it has to be built on purpose. Options include a properly drafted waiver, an elective share trust, or an arrangement that satisfies the spouse while still providing for children from an earlier marriage.

Legacy Planning Law Group works with clients across the Jacksonville area on plans that account for a spouse’s statutory rights from the start, and with surviving spouses trying to understand what they are entitled to. Either way, the deadlines move faster than most people expect.

Request a free consultation to learn more. 

References: Florida Statutes “732.2035 Property entering into elective estate” | Florida Statutes “732.2135 Time of election; extensions; withdrawal”