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Home > Blog > Probate > Did Your Spouse Secretly Remove You From Their Will? Understanding Florida’s Elective Share

Did Your Spouse Secretly Remove You From Their Will? Understanding Florida’s Elective Share


For most, losing a spouse is a heartbreaking, overwhelming, and traumatic experience. Sometimes, when a loved one passes away they have not prepared a final will and testament providing for their family, which can complicate and prolong the probate process and potentially leave loved ones without critical resources for months or even years while the decedent’s affairs are sorted out by the court. However, in some cases, a decedent has prepared a last will and testament which, much to the surprise of their surviving spouse, completely excludes them. This can compound the feeling of loss with ones of confusion, hurt, and betrayal. Luckily, if you find yourself in this position in Florida, you are not out of luck. Under Florida law, the surviving spouse is entitled to an elective share of their deceased spouse’s estate. Because this is a statutory right, it is unaffected by a will to the contrary.

What is Florida’s Elective Share?

Florida’s elective share is a statutory right, entitling a surviving spouse to up to 30% of their deceased spouse’s assets. The surviving spouse has a right to claim this share regardless of the terms of the will. In that sense, the elective share provides a safety net for spouses who have built a life and wealth with their spouse only to be cut out or left a very small share of the estate. For a spouse who has been disinherited, the elective share is a crucial protection to understand and utilize. In most cases, a spouse will be entitled to an elective share, even if the couple was estranged, separated, or pursuing divorce at the time of death. The elective share applies to any of the deceased’s assets that would have to go through probate. Assets that have been placed in a living trust or for which other means of avoiding probate have been utilized, will likely not be factored into the estate for the purposes of calculating an elective share.

When is Pursuing an Elective Share the Best Option?

In some cases, such as where the surviving spouse has been explicitly removed from the will, pursuing an elective share will be the best option. The elective share exists to overcome a valid will that excludes the surviving spouse. It’s important to note that if there is no valid will, the assets will be distributed in accordance with Florida’s intestate succession laws, which favor the spouse. For this reason, if your spouse died without a valid will, you will likely receive a higher percentage of their estate by proceeding with probate without pursuing an elective share. However, if your spouse had a valid will which they used to try and disinherit you or leave you an unfairly small portion of their estate, it will be worthwhile to pursue an elective share.

Talk to a Florida Probate Attorney

If you have been unfairly disinherited from your spouse’s will or if you have questions about the probate process in Florida, contact the West Palm Beach probate lawyers at the Law Offices of Larry E. Bray, P.A. to schedule a consultation.

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