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Florida Elective Share

In 1975, Florida abolished dower and courtesy and gave surviving spouse’s the right to an “elective share” of the decedent’s estate.  At the time, the elective share could be made against probate assets, so a decedent could still exclude his or her spouse by leaving nothing subject to probate.  In 1999, the Florida legislature substantially revised the elective share laws to make them more expansive and to ensure that a surviving spouse could not be left with nothing.  Florida’s Elective Share laws can be found within the Florida Probate Code.  

What Assets Are Included?

The elective share is an amount equal to 30% of the elective estate, as defined by Fla. Stat. s. 732.2035Property that is part of the elective estate includes:

  • The decedent’s probate estate defined as “all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia.”
  • Joint bank Accounts, Pay on Death Accounts, Totten Trusts
  • Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property)
  • Revocable Trusts
  • Certain irrevocable transfers, including transfers with retained right to income or principal or retained right to discretionary principal distributions
  • Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death)
  • Pensions and Retirement Plans
  • Transfers made within one year of decedent’s death
  • Irrevocable transfers to an Elective Share Trust
  • Property passing directly to surviving spouse

Example #1:

Decedent has a gross estate of $1,000,000, which breaks down as $500,000 home owned jointly with Wife (so only $250,000 of the value is decedent’s), $100,000 CD pay on death to Daughter, $400,000 brokerage account subject to probate and $250,000 life insurance policy payable to Wife.

Under this plan, the Wife is receiving $500,000 ($250,000 from decedent’s interest in home and $250,000 in life insurance), which represents 50% of decedent’s estate.  Because Wife is receiving more than the elective share, she would not be entitled to recover any additional amounts by filing for an elective share.

Example #2:

Decedent has a gross estate of $1,000,000, which breaks down as $250,000 home owned jointly with Wife, five $100,000 CDs payable on death to his children and grandchildren, and $250,000 in stocks in his sole name.

Under this plan, Wife is only receiving $125,000 from Decedent and would be entitled to additional amounts under the elective share laws.  Wife is entitled to 30% of the elective estate, which is $1,000,000, so Wife is entitled to receive $300,000.  She is already receiving $125,000 by operation of law (joint property passing to her), so she can seek an additional $175,000 from Decedent’s other assets and the beneficiaries are liable to her and will have to contribute funds they received in satisfaction of her elective share.  Under Fla. Stat. §732.2145(2), the personal representative has a duty to enforce contribution from the recipients of the elective estate once the court has ordered contribution.

Can Florida Elective Share be Barred or Waived?

The Florida elective share may be barred or waived by the existence of a valid pre-nuptial agreement or other written agreement executed either before or after marriage.

The Florida elective share can be barred as untimely if the surviving spouse fails to elect it within the period set forth in Fla.Stat. §732.2135, which is on or before the earlier of the date that is six (6) months after the date of service of a copy of the notice of administration on the surviving spouse or the date that is two (2) years after the date of the decedent’s death.

Florida Elective Share law is complex. A skilled probate attorney is required to prosecute or defend a claim for elective share.  If you need an attorney to represent you in connection with a Florida Elective Share claim, call the Law Offices of Adrian Philip Thomas, P.A. for your free consultation.

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