Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

The Florida elective share is a surviving spouse’s statutory right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. It is created by Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), and it cannot be quietly written out of a will. For couples retiring or wintering in Palm Beach, it is one of the most misunderstood corners of Florida estate planning — and one of the most consequential.

If you have moved to Florida from New York, New Jersey, or Ohio, the rules you absorbed up north do not transfer. Florida’s elective share reaches far beyond the probate estate, and the planning that worked in your prior home state may quietly fail here. Below is what the elective share actually covers, who can claim it, and the legitimate ways Florida couples plan around it.

What the Florida Elective Share Actually Is

In plain terms: Florida does not let you disinherit your spouse. You can disinherit an adult child, a sibling, a business partner, anyone — but not the person you were married to when you died. If a surviving spouse receives less than 30% of the elective estate under the will, trust, and other transfers, that spouse can file an election and demand the difference.

The percentage is fixed at 30%. Florida does not slide the number based on length of marriage, unlike some states that scale the share. A spouse married for eleven months has the same 30% right as a spouse married for forty years, subject to the waiver and timing rules discussed below.

This is separate from, and stacks on top of, other spousal protections under Florida law — including the constitutional homestead rights and the family allowance and exempt property rights under Florida Statutes 732.402 and 732.403. A surviving spouse can claim the elective share and homestead protection and exempt property. They are not mutually exclusive, and that layering is exactly where do-it-yourself plans tend to collapse.

The “Elective Estate”: Why 30% Is Bigger Than You Think

The single biggest surprise for new Florida residents is the breadth of the elective estate. People assume the 30% applies only to assets passing through probate. It does not. Florida deliberately built an “augmented” estate concept into section 732.2035 so that a spouse cannot be cut out by routing assets around the will.

The elective estate generally includes:

• The decedent’s probate estate (assets in the sole name with no beneficiary).
• The decedent’s interest in revocable (living) trusts — this is the one that surprises people who used a trust precisely to avoid probate.
• Pay-on-death and transfer-on-death accounts, and accounts payable to a beneficiary.
• Jointly held property and property with rights of survivorship, to the extent of the decedent’s contribution.
• The cash surrender value of life insurance on the decedent’s life.
• The decedent’s interest in qualified retirement plans, IRAs, and similar accounts.
• Certain transfers made within one year of death, and transfers where the decedent retained the right to income or the power to revoke.

In other words, the strategies that snowbirds most commonly use — a funded revocable trust, POD bank accounts, beneficiary-designated brokerage accounts — are pulled into the elective-share math, not out of it. A plan that “avoids probate” does not, by itself, avoid the elective share.

A Quick Palm Beach Example

Suppose a widower remarries late in life, then sets up a revocable trust leaving the bulk of his estate to his children from his first marriage, with a modest bequest to his new wife. He assumes the trust keeps his second wife from “taking everything.” Under Florida law, the trust assets count in the elective estate. If his wife’s share falls below 30% of that augmented total, she can elect against the plan and the children’s inheritance shrinks accordingly. The trust did not shield the estate from her claim; it simply postponed the fight.

Who Can Claim — and the Strict Deadlines

Only a surviving spouse who was legally married to the decedent at death may elect. The right is personal, though it can be exercised by a guardian or an attorney-in-fact acting under proper authority for an incapacitated spouse, and Florida courts watch those situations closely.

Timing is unforgiving. The election must generally be filed within the earlier of six months after service of the notice of administration or two years after the date of death (Fla. Stat. 732.2135). Miss the window and the right is gone. There is a limited ability to seek an extension if requested before the deadline runs, but no one should count on it. For a grieving spouse, six months disappears quickly, which is why a surviving spouse should consult counsel early rather than waiting until the estate “settles.”

Legitimate Ways to Plan Around the Elective Share

You cannot erase the elective share with clever drafting. But Florida law provides several lawful, well-trodden paths for couples who want a different outcome — for instance, blended families who want to protect children from a prior marriage while still providing fairly for a current spouse.

1. A Valid Spousal Waiver

Under Florida Statutes 732.702, spouses can waive the elective share — entirely or in part — in a written contract signed by the waiving spouse. This is the cleanest tool. It appears in:

• Prenuptial agreements signed before marriage.
• Postnuptial agreements signed during marriage.

One Florida-specific wrinkle matters here: for a waiver signed after marriage, Florida requires fair disclosure of the other spouse’s assets. For a waiver signed before marriage, full financial disclosure is not strictly required by statute — though a careful attorney still recommends it, because a waiver attacked as unfair or involuntary can be set aside. A well-drafted, independently reviewed agreement is worth far more than a form pulled off the internet.

2. Satisfying the Share With the Right Assets

Section 732.2075 sets an order for how the elective share is satisfied, and certain property transferred to the spouse — including interests in a qualifying elective-share trust — can be credited toward the 30%. A properly structured trust that gives the surviving spouse a qualifying income interest can satisfy the obligation while still controlling where the assets go after that spouse dies. This is the standard tool for protecting children from a first marriage without triggering a successful election.

3. Coordinating With Homestead and Title

Because homestead, exempt property, and the elective share interact, how a Palm Beach residence is titled and how it passes can change the math substantially. Florida’s homestead descent rules (and the spouse’s option to take a life estate or a one-half tenancy in common interest) deserve their own analysis. The point is that title decisions made casually — adding a child to a deed, for example — can have outsized elective-share and homestead consequences. Florida residents often benefit from reviewing how a is structured, since the underlying principles of life estates and remainder interests translate across states even when the statutes differ.

4. Honest, Fair Provision

Sometimes the best “plan around” the elective share is simply to provide for your spouse at or above 30% so the issue never arises. Many disputes are not really about money — they are about a surviving spouse feeling sidelined by an estate plan built around someone else’s children. Generosity, clearly documented, is its own form of litigation insurance.

Common Mistakes Snowbirds and Retirees Make

• Assuming a revocable trust defeats the share. It does not. Trust assets are counted.
• Relying on an out-of-state prenup without Florida review. A prenup valid in New York or Ohio may need to satisfy Florida’s standards to hold up here. Have it reviewed after you establish Florida residency.
• Naming children as beneficiaries to “skip” the spouse. Beneficiary designations on life insurance, retirement accounts, and POD accounts are pulled into the elective estate.
• Forgetting the deadline. A surviving spouse who waits too long forfeits the claim; a personal representative who ignores the spouse’s rights invites litigation.
• DIY estate documents. The interplay of elective share, homestead, and exempt property is precisely where generic online forms fail Florida families.

How This Fits Your Broader Florida Plan

The elective share rarely lives in isolation. It sits alongside your will, your revocable trust, your beneficiary designations, and any plan you have for incapacity or long-term care. For seasonal residents who split time between Florida and a northern home state, coordination matters even more, because two states’ rules can touch the same assets. Advanced strategies — such as a for Medicaid-related planning — can interact with spousal rights in ways that are easy to miss without coordinated counsel on both sides of the state line.

If you are building or revisiting a Florida plan, our can map the elective-share exposure across your entire asset picture, not just your will. And if probate is already underway, understanding the elective share is part of navigating Florida probate correctly the first time.

The elective share exists to protect a marriage, not to ambush a family. With the right waiver, the right trust structure, and honest disclosure, Palm Beach couples can honor both their spouse and their children — without leaving the decision to a probate judge.

Questions about how the elective share affects your estate? Contact our Palm Beach office to review your plan before it is tested.

Frequently Asked Questions

How much is the Florida elective share?

The Florida elective share is 30% of the decedent’s elective (augmented) estate, set by Florida Statutes Chapter 732, Part II. The percentage is fixed and does not change based on the length of the marriage.

Does the elective share apply to assets in a revocable living trust?

Yes. Under Florida Statutes 732.2035, the elective estate is ‘augmented’ to include revocable trust assets, pay-on-death and transfer-on-death accounts, jointly held property, the cash surrender value of life insurance, and retirement accounts. Avoiding probate does not, by itself, avoid the elective share.

Can a spouse waive the Florida elective share?

Yes. Under Florida Statutes 732.702, a spouse may waive the elective share in a signed written agreement, typically a prenuptial or postnuptial agreement. A waiver signed after marriage requires fair disclosure of assets; a properly drafted, independently reviewed agreement is far more durable than a generic form.

What is the deadline to claim the elective share in Florida?

A surviving spouse must generally file the election within the earlier of six months after service of the notice of administration or two years after the date of death, under Florida Statutes 732.2135. Missing the deadline forfeits the right, so a surviving spouse should consult an attorney early.

Can I disinherit my spouse in Florida?

No. Unlike adult children or other relatives, a surviving spouse cannot be fully disinherited in Florida. Even if a will or trust leaves them nothing, the spouse can elect to take 30% of the elective estate, plus separate homestead and exempt property rights, unless they validly waived those rights.