Florida’s Elective Share, Explained Simply

Why a Surviving Spouse Can’t be Fully Disinherited — and What They’re Entitled To Instead

By: George Taylor

Florida law makes a basic promise to married people: you can’t completely cut your spouse out of your estate. Even if a will leaves a surviving spouse nothing, or far less than they expected, Florida gives that spouse the right to claim a guaranteed share instead. It’s called the elective share. Here’s how it works, in plain terms.

The Basic Idea

When a married person dies in Florida, the surviving spouse can choose between two things: take whatever the will (or the absence of a will) leaves them, or “elect” to take a fixed share of the estate set by law. They get to pick whichever is better for them. That choice is the “elective share,” and it exists so that one spouse can’t quietly disinherit the other.

How Much is It?

The elective share is 30% of the “elective estate.” In other words, a surviving spouse who elects is entitled to roughly three-tenths of what counts towards the elective estate, regardless of what the will says.

What Counts, and Why it's More Than You'd Expect

Here’s the part that surprises people. The “elective estate” is not just the assets that pass under the will. Florida deliberately casts a wide net, so a person can’t sidestep the rule by moving assets out of their probate estate. The elective estate generally includes:

• assets that would pass under the will (the probate estate);
• the protected homestead;
• the decedent’s share of joint accounts and “pay on death” or “transfer on death” accounts;
• retirement accounts such as IRAs and 401(k)s;
• the cash value of certain life insurance; and
• certain assets given away within one year before death.

Because the net is this wide, the elective share often reaches assets a spouse assumed were safely outside the estate.

There is a Deadline, and it’s Strict

The right isn’t automatic. The surviving spouse must claim it by filing with the probate court, and the election must be made by the earlier of two dates: six months after the spouse is served with the notice of administration, or two years after the date of death. Miss that window, and the right can be lost.

It Can be Given Up in Advance

A spouse can waive the elective share, but only through a valid written agreement, typically a prenuptial or postnuptial agreement signed with the proper formalities. This is how couples who want a different arrangement (for example, to protect children from a prior marriage) can plan around the default rule. Without a valid waiver, the 30% right stands.

Why it Matters To You

If you’re planning your estate, the elective share means you can’t simply write your spouse out — and if you intend an unequal arrangement, you’ll need the right agreements in place to make it hold. If you’re a surviving spouse, it can mean you’re entitled to far more than a will appears to leave you, but only if you act within the deadline. Either way, this is an area where small missteps carry large financial consequences.

Brinkley Morgan helps Florida spouses and families understand their rights and plan with confidence.

Contact George Taylor to schedule a consultation.

Based on Florida Statutes §§ 732.201–732.2155. This article is general information, not legal advice.