The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will says. It exists so that no married person in Florida can fully disinherit a husband or wife by leaving them out of a will or steering assets through trusts and beneficiary designations. The right is found in Chapter 732, Part II of the Florida Statutes, and it reaches far beyond the probate estate into accounts and assets many people assume are untouchable.
If you are doing your first estate plan, especially as a young family with a new home and a couple of retirement accounts, this is one of the most misunderstood corners of Florida law. Below is a plain-English walkthrough of what the elective share covers, how the 30% is actually calculated, and the legitimate ways spouses either protect each other or plan around the share.
What the Florida Elective Share Actually Guarantees
Under Florida Statutes section 732.201, a surviving spouse who is unhappy with what the deceased spouse left them may instead elect to take 30% of the elective estate. This is a personal right of the surviving spouse. No one is forced to take it. A well-provided-for spouse often does nothing, because the will or trust already leaves them more than the statutory minimum.
The point of the elective share is protective. Florida law treats marriage as an economic partnership, so the surviving spouse is entitled to a meaningful slice of the couple’s wealth even if the first spouse to die tried to direct it elsewhere. That intent matters when you read the next part, because the statute is deliberately broad about what counts.
30% of What? Understanding the “Elective Estate”
This is where most people guess wrong. The elective share is not 30% of the probate estate. It is 30% of the elective estate, a much larger pool defined in Florida Statutes section 732.2035. The elective estate includes, among other things:
- The decedent’s probate estate (assets passing under the will or by intestacy);
- Revocable (living) trust assets, which is why a revocable trust does not defeat the elective share;
- The net cash surrender value of life insurance on the decedent’s life owned by the decedent;
- The decedent’s interest in pension, retirement, and similar accounts;
- Payable-on-death and transfer-on-death accounts, and most jointly held accounts;
- Property the decedent transferred within one year of death without adequate consideration; and
- Certain transfers where the decedent kept the right to income or the power to revoke.
That last group is what surprises people. You cannot quietly move money into a POD account or retitle the brokerage account into your sister’s name months before death and assume it escapes the calculation. Florida pulls many of those transfers back in. The homestead, jointly owned property, and various other interests are valued under the detailed rules in sections 732.2055 and 732.2075, and the math gets technical fast, so this is genuinely an area where DIY planning goes sideways.
The Time Limit to Claim It
The right is not open-ended. Under Florida Statutes section 732.2135, the surviving spouse generally must file the election within the earlier of six months after being served with a notice of administration, or two years after the decedent’s death. Miss the deadline and the right is usually gone. If you are the surviving spouse, this is one of the first calendar dates to lock in after a death, and a reason to talk to a probate attorney quickly rather than waiting.
Why This Matters for First-Time Planners and Young Families
If you are married and building your first estate plan, the elective share usually works in your favor as mutual protection. Couples who leave everything to each other rarely trigger an elective share fight, because each spouse already receives far more than 30%.
The friction shows up in three common situations:
- Blended families. A spouse with children from a prior relationship wants to provide for those kids, but Florida still guarantees the new spouse 30%. Plans that ignore this collide with the statute.
- A spouse trying to limit the other. Maybe the marriage is strained, or one spouse brought substantially more wealth into it. You cannot simply write the other out.
- Heavy use of beneficiary designations. Young families often hold most of their net worth in 401(k)s, IRAs, and life insurance. Because those feed the elective estate, “just naming a beneficiary” does not sidestep a spouse’s rights.
Note that the elective share is separate from homestead protections and the family and exempt property allowances under Florida law. A surviving spouse may be entitled to a life estate or a one-half tenancy in common in the homestead under section 732.401, plus a family allowance and exempt personal property, on top of or interacting with the elective share. These rights stack and overlap in ways that reward careful drafting.
How to Plan Around the Elective Share (Legally)
“Planning around” the elective share does not mean cheating a spouse. It means using the lawful tools Florida provides so your estate plan does what you intend without an after-the-fact court battle. There are essentially three legitimate levers.
1. Waiver by Prenuptial or Postnuptial Agreement
The cleanest tool is a written waiver. Under Florida Statutes section 732.702, a spouse can waive the elective share (and homestead and other spousal rights) in a signed writing, before or after marriage. A prenuptial agreement signed before the wedding does not even require financial disclosure to be valid for this purpose, though full disclosure is still smart. A postnuptial agreement signed during the marriage generally does require fair disclosure of assets. These agreements are common and entirely appropriate in second marriages and blended families, where both spouses already have their own children and want to protect them.
2. Satisfying the Share Through a Properly Drafted Trust
You can also satisfy the 30% with assets you choose rather than letting the spouse cherry-pick. The statute allows certain interests, including a qualifying elective-share trust, to count toward the spouse’s share. A well-built trust can give the surviving spouse the income and security the law intends while ultimately preserving the remainder for your children. This is precisely the kind of structure where a trust does more than a simple will. For families with special circumstances, more specialized vehicles can layer in, and you can see how trust planning works in a related context through Morgan Legal’s overview of a and a ; while those are New York instruments, they illustrate how income-focused trusts balance support for a beneficiary against preserving assets.
3. Lifetime Gifting and Timing (With Caution)
Gifting assets during life removes them from the estate, but remember the one-year pullback rule in section 732.2035 and the clawback for retained-interest transfers. Spreading gifts over time, with real loss of control, can reduce the elective estate, but aggressive last-minute transfers tend to be unwound. This is a long-game tool, not a deathbed maneuver, and it should always be coordinated with your broader plan rather than done in isolation. Our team can walk through these options in a focused planning consultation.
Common Mistakes Boca Raton Families Make
After years of probate and estate work, the same avoidable errors show up again and again:
- Assuming a revocable trust hides assets from a spouse. It does not. Revocable trust property is squarely in the elective estate.
- Relying on POD and joint accounts to disinherit. Most of these are counted, so they rarely accomplish what people hope.
- Skipping the waiver in a second marriage. Without a pre- or postnuptial agreement, the new spouse’s 30% right can override a plan meant to protect children from a first marriage.
- Forgetting homestead. A spouse’s homestead rights are separate from the elective share and can dramatically reshape who lives in and ultimately owns the family home.
- Letting the deadline lapse. A surviving spouse who waits past the statutory window can lose a six-figure right entirely.
The throughline is that Florida’s spousal protections are intentionally hard to evade by accident. You either plan with them deliberately or you let them apply by default, and the default rarely matches what a couple actually wanted.
Where the Elective Share Fits in Your Overall Plan
For most young married couples, the right move is not to fight the elective share but to build a plan that makes it a non-issue, leaving enough to your spouse that the 30% floor never comes into play, while using trusts and guardianship provisions to protect minor children. For blended families and second marriages, a clear waiver plus a properly funded trust usually delivers fairness to a current spouse and certainty for children from a prior relationship.
Either way, coordinate your will, trust, beneficiary designations, and titling so they tell one consistent story. A plan that conflicts with itself is how elective-share disputes end up in Florida probate court. If you would like to review your situation with a Florida estate planning attorney, the can help you stress-test your plan against these rules before they are ever put to the test.
None of this is legal advice for your specific circumstances. The statutes referenced here are real and current as of this writing, but their application depends on facts, dates, and asset details that deserve a careful, individualized look.
Frequently Asked Questions
How much is the Florida elective share?
A surviving spouse can elect to take 30% of the deceased spouse’s elective estate under Florida Statutes section 732.2065. The elective estate is broader than the probate estate and includes revocable trust assets, certain retirement and life insurance interests, POD and joint accounts, and some transfers made within a year of death.
Can a revocable living trust avoid the Florida elective share?
No. Assets in a revocable (living) trust are specifically included in the elective estate under section 732.2035. A revocable trust is excellent for avoiding probate and managing assets, but it does not let one spouse disinherit the other or shrink the surviving spouse’s 30% right.
Can a spouse waive the elective share in Florida?
Yes. Under Florida Statutes section 732.702, a spouse can waive the elective share, homestead, and other spousal rights in a signed written agreement, either before marriage (a prenuptial agreement) or during it (a postnuptial agreement). Postnuptial waivers generally require fair financial disclosure to be enforceable.
How long does a surviving spouse have to claim the elective share?
Generally, the election must be filed within the earlier of six months after being served with the notice of administration or two years after the decedent’s death, under section 732.2135. Missing this deadline usually forfeits the right, so a surviving spouse should consult a probate attorney promptly.
Is the elective share the same as homestead rights?
No. The elective share and Florida homestead rights are separate protections that can stack. A surviving spouse may be entitled to a life estate or a one-half interest in the homestead under section 732.401, plus family and exempt property allowances, in addition to the 30% elective share.
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