Florida’s Elective Share Gives ‘Disinherited’ Spouse a Piece of the Estate

By: George Taylor

Imagine this scenario: someone falls in love, marries, falls out of love, doesn’t divorce, but writes their spouse out of their will.  Then they die—blissfully believing the spouse will get nothing.

In Florida, they would be wrong.

Regardless of which spouse has means and dies, Florida’s elective share statute would see that the surviving spouse will receive a portion of the estate.

Florida’s elective share was created in 1975 to keep husbands who die from writing their wives and children out of their will, thus leaving the surviving family without means.  It also abolished the historic concept of dower and curtesy, which left unequal shares of a decedent’s estate to a widower versus a widow, with larger amounts favoring a widower.

Elective share gives the surviving spouse the ability to elect a 30% share of the deceased spouse’s elective estate.  Important note: the elective estate can be much larger than the probate estate.

What’s included in the elective estate?  Among others proceeds, assets include the entire probate estate; the decedent’s interest in the protected homestead of the decedent; the decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of survivorship form; and properties in various forms and with some limitations (read the entire list here Fla. Stat. § 732.2035).

If the probate estate is worth $500,000, but the elective estate is worth $1 million, the surviving spouse who timely makes the required election receives 30% of the elective estate.  Under Florida law, the elective share is a floor, not a ceiling.  And it is in addition to other property received by the surviving spouse, like protected homestead and exempt property.

Exclusions from the elective estate include, among other proceeds, any irrevocable transfer of property by the decedent before the date of the decedent’s marriage to the surviving spouse; any transfer of property by the decedent wherein the decedent received adequate consideration in money or money’s worth for the transfer; any transfer of property by the decedent made with the written consent of the decedent’s spouse; proceeds of any policy of insurance on the decedent’s life in excess of the net cash surrender value of the policy whether payable to the decedent’s estate, a trust, or in any other manner or any life insurance policy on the decedent maintained pursuant to a court order; the decedent’s one-half of the property that is community property under the laws of the jurisdiction where it is located; property held in a qualifying special needs trust on the date of the decedent’s death; property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment; and the protected homestead of the decedent if the surviving spouse validly waived their homestead rights.  Other overlapping applications apply (read the entire list here).

Not surprisingly, these situations arise most often in second marriages, where a stepparent and stepchildren are at odds.  Here is a typical scenario: the decedent created a framework where most of their assets pass outside of probate and directly to their children (think multiple pay on death accounts that name the children as the beneficiaries).  The result is a probate estate with little value; however, the surviving spouse can open a probate and opt for their elective share and force the stepchildren to contribute from the assets that passed outside of probate.

How can a spouse guard against Florida’s elective share?  Simple—a pre-or post-nuptial agreement that eliminates the right to the elective share.

If you’re the surviving spouse, you must make your claim quickly.  You have the earlier of the two dates to act: six months from your receipt of the notice of probate administration, or two years after the date of the decedent’s death.  If the marriage ended in divorce, the surviving spouse cannot opt for the elective share.

No matter what side you are on, you must consult an attorney because Florida’s elective share laws are complicated, even for lawyers who practice in this area.  If elective share was tested on The Florida Bar exam, I imagine passage rates would sink like the Titanic.  If you want to disinherit your spouse, do it by agreement.  Suppose that’s not possible?  Then work with a skilled estate planning attorney to limit the size of the elective estate.

George J. Taylor is a partner in Brinkley Morgan’s Estate and Trust Litigation and Business Litigation practice groups in its Fort Lauderdale and Boca Raton, Florida, offices.