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 or trust actually leaves them. It exists so that a married person cannot disinherit a husband or wife in Florida. The right is found in Chapter 732, Part II of the Florida Statutes, and it reaches far beyond the probate estate to capture trusts, jointly held property, and certain transfers made during life.
If you are a retiree or seasonal resident in South Florida, this one provision can quietly rewrite your estate plan. I’ve watched snowbirds assume that a revocable trust drafted up north shields them from a spouse’s claim, only to learn that Florida law follows the money no matter how it’s titled. Below is a working explanation of how the elective share operates, what it counts, the deadlines that matter, and the legitimate ways couples plan around it.
What the Florida Elective Share Actually Is
Under Florida Statutes § 732.201, the surviving spouse of a person who dies domiciled in Florida is entitled to an elective share. Section 732.2065 fixes the amount: 30% of the elective estate. This is not a default that applies only when there’s no will. It is an override. A spouse can elect to take the 30% even if the decedent left them nothing, or left them less than 30% in the documents.
The policy is straightforward. Florida treats marriage as an economic partnership and refuses to let one spouse exit that partnership through clever titling or a last-minute will. The elective share is separate from homestead protections, the family allowance, exempt property, and intestate inheritance. A surviving spouse can be entitled to several of these at once.
Who can claim it
Only a legal surviving spouse can elect. Long-term partners, fiancés, and ex-spouses cannot. The marriage must have been valid and ongoing at death. A pending divorce that was never finalized does not strip the survivor of the right, which surprises people more often than you’d think.
The “Elective Estate” Is Much Bigger Than Probate
Here is where Florida is aggressive, and where out-of-state plans tend to fail. The elective share is not calculated only on assets that pass through probate. Florida Statutes § 732.2035 defines the elective estate to include a long list of property the decedent controlled, even if it bypassed probate entirely.
- The probate estate — assets titled in the decedent’s sole name with no beneficiary.
- Revocable trust assets — the entire corpus of a living trust the decedent could amend or revoke.
- Pay-on-death and transfer-on-death accounts, plus securities registered in beneficiary form.
- Jointly held property — the decedent’s fractional interest in joint accounts and tenancy-in-common, and the full value of certain joint-with-right-of-survivorship assets.
- Retirement accounts and pensions — the decedent’s interest in IRAs, 401(k)s, and similar plans.
- The net cash surrender value of life insurance on the decedent’s life owned by the decedent immediately before death.
- Certain transfers made within one year of death and property over which the decedent held a general power of appointment.
Add it up and you’ll see why a will alone rarely tells the whole story. A surviving spouse’s lawyer will assemble the full elective estate from beneficiary forms, account statements, and trust documents, then claim 30% of the net total after deducting valid debts and liabilities.
What gets credited toward the share
The spouse doesn’t get 30% on top of everything they already received. Under § 732.2075, property that passes to the surviving spouse — outright bequests, joint accounts that vest in them, trust interests, life insurance, and the like — is credited against the 30% obligation first. Only the shortfall is made up from other beneficiaries’ shares, in a defined order of contribution. So the practical question is usually not “does the spouse get 30%?” but “is the spouse already getting at least 30%, and if not, who pays the gap?”
Deadlines: The Election Window Is Strict
The elective share is a use-it-or-lose-it right. Under Florida Statutes § 732.2135, the surviving spouse must file the election with the probate court by the earlier of:
- Six months after service of the notice of administration, or
- Two years after the decedent’s death.
The court can extend the deadline for good cause if the spouse requests it before the period runs, but you cannot count on that. Miss the window and the right evaporates, even if the spouse was genuinely entitled to hundreds of thousands of dollars. Personal representatives, take note: serving the notice of administration starts the six-month clock, which is often the faster of the two deadlines.
How Couples Legitimately Plan Around the Elective Share
“Planning around” the elective share does not mean cheating a spouse. It means structuring an estate so the share is satisfied predictably, or waived knowingly, so the plan does the family’s bidding instead of forcing a contest. There are a handful of legitimate tools.
1. Marital agreements (the cleanest option)
A spouse can waive the elective share entirely. Florida Statutes § 732.702 allows waiver through a prenuptial or postnuptial agreement, or a separate written waiver signed by the waiving spouse. A prenup signed before marriage needs no financial disclosure to be valid on this point; a postnuptial agreement signed during the marriage generally requires fair and reasonable disclosure of assets. For blended families — common among retirees on a second or third marriage — a well-drafted marital agreement is by far the most reliable approach. It lets each spouse protect children from a prior marriage without a probate fight.
2. The elective share trust
Rather than handing a spouse 30% outright, § 732.2025 permits the decedent to fund a qualifying elective share trust. If the trust gives the surviving spouse the income for life and meets the statutory requirements, it counts dollar-for-dollar toward the 30% obligation. This is powerful for second marriages: the surviving spouse is supported for life, but the remainder passes to the decedent’s children, not the survivor’s heirs.
3. Satisfy the share with assets that already vest in the spouse
Because property passing to the spouse is credited first, careful beneficiary designations can satisfy the 30% without disrupting the rest of the plan. A jointly titled home, a TOD brokerage account, and life insurance payable to the spouse can together exceed 30%, leaving the will and trust free to distribute the balance as intended.
4. Lifetime transfers — handle with care
Gifts and transfers can shrink the estate, but Florida’s clawback provisions pull many of them back into the elective estate, especially transfers within one year of death and assets in a revocable trust. Irrevocable structures completed well before death and outside the spouse’s reach are the only transfers that reliably fall outside the calculation, and they carry their own tradeoffs around control, taxes, and Medicaid. Sophisticated tools like a or an irrevocable income-only structure are sometimes used, but the rules differ by state, so coordinate with counsel where the property sits.
Special Issues for Snowbirds and Seasonal Residents
The single most important question for a part-time Florida resident is domicile. The elective share applies to the estate of someone who dies domiciled in Florida. If your legal home is New York and you winter in Miami, your spouse’s spousal-rights claim may be governed by New York’s law instead, which uses a different formula and a different definition of the augmented estate. Many of our clients keep one foot in each state, and which law controls can swing the outcome dramatically.
This is why coordination across jurisdictions matters. We regularly work alongside Morgan Legal’s when a client’s plan touches both states, and with the firm’s for the Florida side. A plan that is airtight under Florida law can spring leaks if the decedent is later found to have been domiciled up north.
A few practical pointers for two-state couples:
- Make your domicile intentional and documented — voter registration, driver’s license, declaration of domicile, and where you actually spend your days all matter.
- Don’t assume an out-of-state revocable trust escapes the Florida elective estate; if you die a Florida domiciliary, it almost certainly counts.
- Revisit beneficiary designations after any move, marriage, or divorce — they drive the elective-share math more than the will does.
- If you and your spouse signed a prenup in another state, have it reviewed for Florida enforceability before you rely on it.
What This Means for Your Plan
The elective share is not a trap so much as a backstop. For most happily married couples who leave each other the bulk of the estate, it never comes into play because the spouse already receives well over 30%. It becomes decisive in second marriages, estrangements, and blended families — exactly the situations common among retirees who relocate to Florida later in life.
If your goal is to provide for a current spouse while protecting children from a prior relationship, you have legitimate tools: a marital agreement, an elective share trust, and disciplined beneficiary planning. If your goal is simply to make sure your spouse is protected, the smart move is to confirm the math actually delivers them at least their statutory share without a court battle. Either way, the documents need to be drafted with Chapter 732 in front of you. For help building or reviewing a plan, see our pages on wills and trusts and Florida probate, or contact our Miami office to talk it through.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s elective estate under Florida Statutes 732.2065. The elective estate includes far more than probate assets, capturing revocable trusts, joint accounts, pay-on-death accounts, retirement plans, and the cash value of life insurance owned by the decedent.
Can a spouse be completely disinherited in Florida?
Not without their consent. A surviving spouse can override a will or trust by electing to take 30% of the elective estate. The only reliable way to limit or eliminate that right is a valid prenuptial or postnuptial agreement, or a signed written waiver under Florida Statutes 732.702.
What is the deadline to claim the elective share?
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 date of death, under Florida Statutes 732.2135. A court may extend the deadline for good cause only if requested before the period expires.
Does Florida's elective share apply if I only live here part of the year?
It applies to the estate of someone who dies domiciled in Florida. For snowbirds, domicile is the key question. If your legal home remains another state like New York, that state’s spousal-rights law may control instead, so it is important to establish and document your domicile and coordinate planning across both states.
Does a revocable living trust protect assets from the elective share?
No. Assets in a revocable trust are expressly included in the elective estate under Florida Statutes 732.2035. Because the decedent could amend or revoke the trust, Florida counts the full trust value when calculating the spouse’s 30% share.
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