If you’ve been left a small portion of an estate (or none at all) after the death of a spouse, then Florida’s Elective Share Law can help.
Designed as a safety net for surviving spouses, the Florida Elective Share statute could ensure you receive 30% of the elective estate – including assets that avoid probate.
If, as a surviving spouse, you’ve been cut out of a will or left a very small inheritance, then you can contact our Florida beneficiary rights attorneys today.
In this Florida Elective Share Law guide, we’ll make it easy to understand the concept:
What Is Florida’s Elective Share Law?
‘Florida Elective Share’ is a portion of a deceased spouse’s estate that a surviving spouse has the right to claim, regardless of what the Will says.
The surviving spouse can override a Will’s terms to collect 30% of the estate.
This law was originally created to protect widowed women who were left financially vulnerable after their husband’s death.
However, today the law is available to all surviving spouses and protects them from losing the value of hard-earned assets due to harsh wills, mistakes and misguided estate planning.
What Is the Elective Share?
An elective share is a term given to the percentage of a deceased spouse’s estate that a surviving spouse has the right to claim.
What Percent Is the Florida Elective Share?
In Florida, the elective share is 30% of the elective estate.
The elective estate includes far more than just the probate estate and may cover assets included in trusts and retirement accounts – making the value often far higher than initially assumed.
Who Can Claim a Florida Elective Share?
In Florida, almost every surviving spouse is entitled to claim an elective share. Even if the marriage was new or the spouses were separated – which is important to know if you’re not legally divorced.
However, some couples may waive the right to an elective share in a pre-nuptial or post-nuptial agreement.
By speaking to our Florida estate planning attorneys, we can review your case and circumstances on your behalf to see what is possible.
One very important factor to know is that the elective share can usually allow a surviving spouse to bypass the plans made by the deceased – such as a will, trust or rights of survivorship arrangement.
For example, the deceased can’t simply ‘shield’ an asset from their spouse in a revocable trust. Though Florida’s elective share, they will likely still have the rights to that asset.
Finally, if no will or other arrangements were made, then the estate will be shared by Florida’s law of intestate succession.
It should be noted that through intestate succession, a surviving spouse is likely to relieve a larger share of an estate than they would by claiming through the Florida elective share law.
What Is Included in an Estate Through Florida Elective Share Law?
Usually, if a beneficiary of a will receives 30% of an estate, they will receive 30% of the remaining estate after debts and expenses have been covered. Property and assets outside of the probate estate, such as living trust are not considered.
Florida elective share claims work differently. Assets owned by the deceased spouse may be considered as part of the ‘elective estate’, even if they are included in trusts and other arrangements.
Florida Statute 732.2035 lists the following decedent assets as part of a Florida elective estate:
- The decedent’s probate estate.
- The decedent’s interest in protected homestead property.
- The decedent’s interest in accounts of securities that would usually transfer outside of probate. Including pay on death, trust accounts and co-ownership with rights of survivorship.
- Property that was transferred before their death, if the transfer was revocable.
- Interest in any net cash surrender value of a life insurance policy, at the time immediately before their death.
- Benefits held under any private or public pension, deferred compensation plan, retirement or another arrangement (excluding social security)
- Any property transferred fraudulently within the year before their death.
Please note that the decedent’s interest in any of the above-listed assets could be any percentage. By speaking to an experienced beneficiary rights attorney, you can discover exactly what elective estate you’re entitled to and what value it is worth.
What Is the Net Elective Estate?
The ‘Net Elective Estate’ refers to the value of assets included in the elective estate, minus any liabilities.
As a surviving spouse, your elective share has priority over other people – including beneficiaries of the will or revocable trusts. You could even have priority over administration costs.
However, elective shares do not have priority over creditors of the estate.
So if a deceased spouse had outstanding debts, the net elective estate would be an elective estate, minus the debts that must be paid off first.
How to Claim the Florida Elective Share?
Anyone who wants to claim for a Florida elective share must do so by filing with the court. Our Florida beneficiary rights attorneys can help guide you through this process, ensuring you do everything on time and accordingly.
Florida Elective Share Claim Process
- Once an election is filed, the estate’s personal representative must notify all interested parties within 20 days.
- Interest parties then have 20 days to file an objection with the court.
- The court will then determine the surviving spouse’s entitlement to the elective share.
- The personal representative then files a petition to discover the portion of the elective share.
- The personal representative must then create an inventory of the elective estate.
- Interest parties may make objections to this amount if desired.
- The court will determine the amount of the elective share.
- The elective share is collected and distributed.
How Long Do I Have to File for Florida Elective Share?
A surviving spouse can file for the Florida elective share on or before:
- Six months from the date they were served notice of estate administration, or;
- Two years from the date of the spouse’s death.
If you require an extension to the time limit, you may request one with good cause. This request must be made within the timeframes listed above.
There are exemptions for these deadlines under specific scenarios. Naturally, this may seem confusing, which is why it’s always advised to speak to an experienced beneficiary rights attorney as soon as possible.
Failure to act fast could see you miss your chance to claim the Florida Elective Share.
How to Object to a Florida Elective Share?
If you feel the grounds for a spouse to receive an elective share are unfair, you must file an objection within 20 days of the notice of the elective share election.
Grounds for objection are extremely limited but may include:
- Duress or undue influence
After an objection is filed, the court will hold a hearing to determine the outcome.
If you or any other interested parties would like to object to someone’s claim to an elective share in Florida, then you can contact our Florida beneficiary rights attorneys. We will review your case and fight to prove any of the above-listed reasons, when relevant.
Contact a Florida Beneficiary Rights Attorney
Anyone looking to file for the Florida elective share or, alternatively, object against the use of it must contact a Florida beneficiary rights attorney as soon as possible.
With between just six months to two years to take action, time is of great importance. Our attorneys welcome anyone in need of legal guidance to receive a free consultation.
Battaglia, Ross, Dicus & McQuaid, P.A. is a U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced attorneys, they can help you navigate the Florida Elective Share Law without stress and wasted time.
Schedule a free consultation today to get started or to get any questions answered.