The Florida elective share is a surviving spouse’s statutory right to claim 30% of a deceased spouse’s “elective estate,” regardless of what the will says. It exists so one spouse cannot quietly disinherit the other. Codified in Florida Statutes Chapter 732, Part II, the right can be exercised, reduced, or waived entirely — but only if you understand how it actually works.
I’ve sat across the table from young couples who assumed a simple will handled everything, and from second spouses who learned, weeks after a funeral, that the document leaving them “everything” was actually leaving them very little. The elective share is one of those quiet rules that almost never matters — until it suddenly matters enormously. If you’re building your first estate plan in South Florida, here’s what you need to know.
What Is the Florida Elective Share?
Florida is not a community property state, but it doesn’t let a married person cut their spouse out of the picture either. Under Florida Statute 732.2065, a surviving spouse may elect to take 30% of the decedent’s elective estate instead of whatever the will (or trust, or beneficiary designations) actually left them.
Think of it as a floor. You can leave your spouse more than 30% — most people do. What you can’t do, without their informed consent, is leave them less. The policy behind it is simple: marriage is treated as an economic partnership, and Florida protects the surviving partner’s share of what the couple built.
This matters most in two situations:
- Blended families. A second marriage where one spouse wants the bulk of the estate going to children from a prior relationship.
- Estrangement. A spouse who, in the middle of a deteriorating marriage, rewrites the will to leave the other spouse little or nothing.
For first-time planners and young families, the elective share usually works in your favor as a safety net. But understanding it now prevents nasty surprises later — especially if your circumstances change.
What Counts as the “Elective Estate”?
Here’s where people get tripped up. The elective share isn’t 30% of the probate estate. It’s 30% of the elective estate, a much broader concept defined in Florida Statute 732.2035. The legislature deliberately cast a wide net so a person couldn’t dodge the rule by moving assets out of probate.
The elective estate generally includes:
- Probate assets — anything passing under the will or by intestacy.
- Revocable (living) trust assets — the classic “I’ll just put it in a trust” move doesn’t escape the elective share.
- Pay-on-death and transfer-on-death accounts, plus certain joint accounts.
- The decedent’s interest in jointly held property, including survivorship property.
- Life insurance cash surrender value (subject to specific rules) and certain retirement accounts and pension benefits.
- Property transferred within one year of death for less than fair value, in some circumstances.
Because the net is so wide, the do-it-yourself dodges people imagine — retitling a brokerage account, naming a child as the POD beneficiary — usually fail. Florida law was written by people who anticipated exactly those moves.
What the Elective Share Is In Addition To
The 30% is not the whole story for a surviving spouse. Under Florida Statute 732.2105, the elective share is in addition to other powerful protections, including:
- Homestead rights — Florida’s constitutional homestead protection can give a surviving spouse a life estate or a one-half interest in the marital home.
- Exempt property — certain household furnishings, vehicles, and other items.
- Family allowance — support during administration of the estate.
So a spouse who feels shortchanged by a will often has several overlapping rights stacked on top of one another. Homestead alone can dramatically reshape who gets the house, independent of the elective share math.
Deadlines: When the Right Must Be Exercised
The elective share is not automatic. The surviving spouse (or their attorney-in-fact or guardian) must affirmatively elect it by filing with the probate court. And the clock is unforgiving.
Under Florida Statute 732.2135, the election must be filed on or before the earlier of:
- Six months after service of the notice of administration on the surviving spouse, or
- Two years after the decedent’s date of death.
The court can grant an extension if requested before the deadline runs, but a spouse who sits on their hands can lose the right entirely. This is one of the most common ways a valid claim evaporates — not because the spouse wasn’t entitled, but because nobody filed in time. If you’re a surviving spouse and you’re unsure whether you’ve been served a notice of administration, treat that uncertainty as urgent and talk to a Florida probate attorney immediately.
Planning Around the Elective Share
“Planning around” the elective share sounds adversarial, but for many couples it’s simply about clarity and fairness, particularly in blended families. There are legitimate ways to address it.
1. Waiver by Agreement
The cleanest tool is a written waiver. Under Florida Statute 732.702, a spouse may waive elective share rights — wholly or partly, before or after the marriage — through a prenuptial agreement, postnuptial agreement, or standalone waiver. The requirements are strict: the waiver must be in writing and signed by the waiving spouse in the presence of two subscribing witnesses.
One important wrinkle: if the waiver is signed before marriage, fair disclosure of assets is not required for it to be enforceable. If it’s signed after marriage, the statute requires fair disclosure of the other spouse’s estate. Couples in second marriages who want to protect children from prior relationships often handle this at the prenup stage precisely for that reason.
2. Provide for the Spouse Outside the Will
Because the elective estate counts assets that already pass to the spouse, a plan that does provide for the surviving spouse — through life insurance, a marital trust, or jointly held property — can satisfy or reduce what’s owed. A well-drafted plan coordinates these pieces so the spouse is treated fairly and the elective share is never triggered as a dispute.
3. Use the Right Trust Structures
Marital trusts and other structures let a planner control the timing and conditions of a spouse’s inheritance while still satisfying Florida’s protections. This is where experienced drafting earns its keep. For families also worried about long-term care costs, asset-protection planning intersects with spousal rights in ways that require care — a handled by an experienced estate planning team, for instance, must be coordinated with spousal entitlements rather than treated in isolation. Similar coordination applies to income-based planning tools like a when an aging spouse is in the picture.
Common Mistakes Young Families Make
Most couples I meet aren’t trying to disinherit anyone. They’re just busy, and they assume the basic forms cover it. The recurring missteps:
- Assuming a will overrides everything. It doesn’t. Beneficiary designations, joint titling, and the elective share all operate independently of your will.
- Believing a revocable trust “hides” assets from a spouse. It’s in the elective estate.
- Signing a prenup without independent counsel. A waiver that looks valid can be challenged if the process was unfair or the disclosures inadequate.
- Forgetting to update the plan after remarriage. A new marriage creates a new spouse with elective share rights — even if your existing will says nothing about them.
For a young family, the right move usually isn’t to plan against your spouse — it’s to make sure your plan and your spousal protections point in the same direction, so no one ends up in a probate fight to claim what you intended them to have anyway.
How an Attorney Helps
The elective share is a math problem layered on top of a deadline problem layered on top of a disclosure problem. Calculating the elective estate, valuing non-probate assets, satisfying the share with the right property, and meeting the filing windows are tasks that reward experience and punish guesswork.
Whether you’re drafting a first plan, negotiating a marital agreement, or you’re a surviving spouse deciding whether to elect, get tailored advice. Our regularly counsels South Florida couples and blended families on exactly these questions, and you can reach out to discuss your situation.
This article is general information about Florida law and not legal advice. The elective share statutes are detailed and fact-specific; consult a licensed Florida attorney about your circumstances.
Frequently Asked Questions
How much is the elective share in Florida?
The elective share equals 30% of the decedent’s elective estate under Florida Statute 732.2065. The elective estate is broader than the probate estate and includes assets like revocable trust property, pay-on-death accounts, certain joint property, and some life insurance and retirement benefits.
Can a spouse waive their Florida elective share rights?
Yes. Under Florida Statute 732.702, a spouse can waive elective share rights wholly or partly through a written agreement (such as a prenup or postnup) signed in the presence of two witnesses. Waivers signed after marriage require fair disclosure of assets; waivers signed before marriage do not.
What is the deadline to claim the elective share in Florida?
Under Florida Statute 732.2135, the surviving spouse must file the election by the earlier of six months after being served the notice of administration, or two years after the decedent’s date of death. Missing the deadline can forfeit the right unless an extension was requested in time.
Does a revocable living trust avoid the elective share?
No. Florida deliberately includes revocable trust assets in the elective estate under Florida Statute 732.2035, so funding a living trust does not shield assets from a surviving spouse’s 30% claim.
Is the elective share in addition to homestead and other spousal protections?
Yes. Under Florida Statute 732.2105, the elective share is in addition to homestead rights, exempt property, and the family allowance. A surviving spouse may have several overlapping protections, and homestead alone can significantly affect who inherits the marital home.
