Florida Elective Share: Surviving Spouse's Right to 30% of the Estate

The Florida elective share gives surviving spouses real protection. Under Florida Statutes Section 732.201-732.2155, a surviving spouse can claim 30% of the deceased spouse's "elective estate," no matter what the will says. A will cannot block this right. If the surviving spouse files a timely election, they get their 30% share.

This guide covers how the elective share works, how to calculate it, the election process, and planning tips you should know.

What Is the Elective Share?

The elective share is a legal right that guarantees a surviving spouse a minimum portion of the deceased spouse's estate. Even if the will leaves everything to someone else (children from a prior marriage, charity, etc.), the surviving spouse can "elect" to take 30% of the elective estate.

Why Does This Right Exist?

The elective share serves several purposes:

• Stops spouses from being cut out of a will completely
• Gives the surviving spouse resources for support
• Reflects the partnership nature of marriage
• Provides economic protection during a difficult time

The 30% Right

The surviving spouse can claim an amount equal to 30% of the elective estate. This is not the same as 30% of what the decedent owned at death. The elective estate includes additional assets, which we cover below.

What Is the "Elective Estate"?

The elective estate is larger than the probate estate. It includes assets the decedent controlled, even if they passed outside of probate.

Components of the Elective Estate

Under Florida Statutes Section 732.2035, the elective estate includes:

1. Probate Estate

• Assets passing under the will
• Assets passing by intestate succession
• Property subject to homestead descent restrictions

2. Revocable Trust Assets

• Property in the decedent's revocable living trust
• Property over which decedent had a general power of appointment

3. Transfers During Marriage

• Joint accounts created during marriage (decedent's contribution)
• Joint property with survivorship rights
• Life insurance proceeds (to extent of cash surrender value)
• Retirement accounts (to extent of decedent's contributions during marriage)
• Annuities

4. Other Controlled Property

• Property decedent could revoke, consume, or dispose of
• Property subject to decedent's general power of appointment
• Certain retained interests in trusts

What's NOT in the Elective Estate

• Irrevocable transfers made before marriage
• Property received by inheritance or gift during marriage (separate property)
• Life insurance to extent of term premium value
• Certain employment death benefits

Calculating the Elective Share

Here is how it works, step by step.

Step 1: Determine the Elective Estate

Add up all assets included in the elective estate as of the date of death.

Here is an example:

Step 2: Calculate 30%

Multiply the elective estate by 30%.

Quick math: $1,850,000 x 30% = $555,000 elective share

Step 3: Apply Credits for Property Already Received

The elective share goes down based on property the surviving spouse already receives:

Credits against elective share:

• Property passing under the will to spouse
• Property passing by intestacy to spouse
• Property in elective estate that passes to spouse by beneficiary designation
• Homestead property
• Exempt property
• Family allowance

Continuing our example:

• Spouse receives under will: $200,000
• Joint accounts to spouse: $100,000
• Life insurance to spouse: $50,000
• Homestead: $300,000
• Total credits: $650,000

Result: Credits ($650,000) exceed the elective share ($555,000), so the spouse already receives more than the elective share. No additional payment is needed.

Step 4: Determine If Election Is Worth It

Only elect if the elective share exceeds what the spouse would otherwise receive.

The Election Process

Who Can Make the Election

The Surviving Spouse: Must be the legal spouse at decedent's death. Florida does not recognize common law marriage, though valid marriages from other states count.

Guardian of the Spouse: If the surviving spouse is incapacitated, their guardian can make the election with court approval.

Personal Representative of Spouse's Estate: If the surviving spouse dies before making an election, their personal representative can make the election.

Deadline to Elect

The surviving spouse must file the election within the later of:

• 6 months after service of the Notice of Administration, OR
• 2 years after the decedent's death

Watch this deadline: The 6-month period starts when the surviving spouse receives proper service of the Notice of Administration. If the court never serves the spouse, the 2-year deadline applies.

How to Elect

Step 1: File Written Election File a written election with the clerk of the court where the probate is pending.

Step 2: Serve Copies Serve copies on the personal representative and all interested persons.

Step 3: Determine Amount Work with the personal representative to determine the elective estate and calculate the share.

What Happens After Election

After the spouse files the election:

1. Personal representative inventories elective estate assets
2. Calculates the 30% share
3. Applies credits for property spouse receives
4. Pays any shortfall to surviving spouse
5. Court may need to divide payments among recipients

Who Pays the Elective Share?

If the elective share exceeds what the surviving spouse receives from the estate, the shortfall comes from other beneficiaries.

Order of Contribution

Property that passes to others contributes to satisfy the elective share in this order:

1. Residuary beneficiaries (proportionally)
2. Specific and general beneficiaries (proportionally)
3. Recipients of non-probate transfers (proportionally)

Here is how it works:

• Elective share: $300,000
• Spouse receives from estate: $100,000
• Shortfall: $200,000

The personal representative collects the $200,000 proportionally from other beneficiaries.

Waiving the Elective Share

Prenuptial Agreements

A valid prenuptial agreement can waive the elective share:

• Must be in writing
• Signed by both parties
• Requires fair disclosure of finances
• Must be voluntary

Postnuptial Agreements

Spouses can also waive elective share rights after marriage with similar requirements.

What Makes a Waiver Valid

Florida courts look closely at waivers to confirm:

• Full financial disclosure was provided
• Each party had the chance to hire independent counsel
• No fraud, duress, or overreaching occurred
• Agreement is not unconscionable

Invalid Waivers

A waiver may be invalid if:

• One party signed under duress
• One party concealed assets
• The terms are grossly unfair at time of enforcement
• The agreement did not follow statutory requirements

When to Consider the Elective Share

Situations Where Election May Make Sense

Disinherited Spouse: Will leaves nothing or very little to surviving spouse.

Unfair Distribution: Will leaves spouse much less than 30% of the total estate.

Second Marriage Situations: Decedent left most assets to children from prior marriage.

Disagreement with Will Terms: Spouse receives less than expected or in an unwanted form (trust vs. outright).

When Election May NOT Make Sense

Already Receiving More Than 30%: If the spouse's share under the will exceeds the elective share.

Spouse in Poor Health: If the spouse has a short life expectancy and election would disrupt family planning.

Tax Considerations: Election could create adverse estate tax or income tax consequences.

Family Harmony: Election may create conflict with stepchildren or other beneficiaries.

Elective Share vs. Other Spousal Rights

Florida provides multiple protections for surviving spouses:

These rights work together but are not stacked on top of each other. The spouse takes the most beneficial combination.

Planning Around the Elective Share

For Married Couples

Provide Adequately for Spouse: Make sure your estate plan gives your spouse at least 30% (or the spouse has signed a valid waiver).

Consider Joint Planning: Coordinate estate plans so both spouses are protected.

Use Trusts Strategically: A well-drafted marital trust can satisfy the elective share while providing asset protection.

For Couples Considering Prenuptial Agreements

Full Disclosure: Complete financial disclosure is a must.

Independent Counsel: Each party should have their own attorney review the agreement.

Fair Terms: Make sure terms are reasonable, not just at signing but at enforcement.

Specific Waiver Language: Explicitly waive elective share and other statutory rights.

Frequently Asked Questions

Can I disinherit my spouse in Florida?

Not entirely. Your spouse can elect to take 30% of your elective estate regardless of what your will says, unless they signed a valid waiver.

Does the elective share apply to trusts?

Yes. Revocable trust assets are included in the elective estate. You cannot block the elective share by putting assets in a revocable trust.

What if my spouse and I are separated?

Legal separation does not eliminate elective share rights in Florida. Only divorce ends these rights.

Can same-sex spouses claim the elective share?

Yes. Following the Supreme Court's marriage equality decision, same-sex spouses have the same elective share rights.

What if my spouse dies before making an election?

The spouse's personal representative can make the election on behalf of the deceased spouse's estate.

Is the elective share the same as community property?

No. Florida is not a community property state. The elective share is how Florida protects surviving spouses, which differs from community property rules in states like California.

Can creditors reach the elective share?

The elective share passes to the surviving spouse and becomes their property. Creditors could then reach it.

What if we have a prenup from another state?

A prenup valid where signed will usually be honored in Florida, but Florida courts will review it under Florida law principles.

Related Florida Guides

• Florida Surviving Spouse Rights
• Florida Homestead Exemption
• Florida Exempt Property
• Florida Family Allowance
• Florida Intestate Succession
• Florida Probate Guide

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Last Updated: January 2026. This guide provides general information about the Florida elective share. Elective share calculations are complex. Consult with a Florida probate attorney for advice specific to your situation.