Can Your Spouse Take More Than Your Will Allows? Florida’s Elective Share Explained

Many people assume that whatever they write in their will is the final word on who gets what. But if you’re married, Florida law gives your spouse a right that can override those wishes, at least in part. It’s called the elective share, and it exists specifically to protect surviving spouses from being left with little or nothing.

What the Elective Share Actually Guarantees

Under Florida law, a surviving spouse can choose to take a share of the deceased spouse’s estate instead of whatever was left to them under the will, or instead of nothing, if the will left them out entirely. That guaranteed share is equal to 30 percent of the elective estate, a figure set by statute.

This right exists regardless of what the will says. Even if a spouse was disinherited entirely, or left only a token gift, he or she can still elect to receive this statutory share instead.

What Counts Toward the Elective Estate

One of the more surprising aspects of the elective share is how broad it is. The elective estate isn’t limited to just the probate assets, meaning the property that passes through the will. It also includes many non-probate assets, such as property held in revocable trusts, payable on death accounts, jointly titled property, and certain life insurance and retirement benefits.

This matters because someone might think they’ve minimized what a spouse can claim by moving assets outside of probate. But because the elective share reaches into these non-probate assets as well, that strategy often doesn’t work the way people expect.

Time Limits Matter

A surviving spouse doesn’t have unlimited time to make this election. Generally, the election must be filed within six months of the notice of administration being served, or within two months of the deadline for filing claims against the estate, whichever is later. Missing that window can mean losing the right to elect altogether, leaving the spouse with only what the will or other documents provide.

Can the Elective Share Be Waived?

Yes. Spouses can waive their right to an elective share, most commonly through a prenuptial or postnuptial agreement. For a waiver to hold up, it generally needs to be in writing, and courts will scrutinize whether it was entered into knowingly and with fair disclosure of the other spouse’s finances. A waiver signed without understanding what was being given up, or without full financial disclosure, can sometimes be challenged later.

This is one of many reasons why couples entering a marriage where one or both parties have significant assets, children from a prior relationship, or a family business, may want to address the elective share directly in a prenuptial agreement, rather than leaving it to chance.

Planning Ahead Protects Everyone

Whether you’re trying to make sure your spouse is provided for, or trying to plan around this rule for other reasons, such as providing for children from a previous marriage, the elective share needs to be factored into any comprehensive estate plan. Ignoring it can lead to outcomes that surprise everyone involved, sometimes years after the documents were signed.

If you have questions about how the elective share might affect your estate plan, or if you’re a surviving spouse wondering what you’re entitled to, our West Palm Beach probate attorneys at the Law Offices of Larry E. Bray are ready to help you sort through your options and protect your interests.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.2065.html