Florida Elective Share Explained: Protecting (or Planning Around) a Surviving Spouse

Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of a deceased spouse’s “elective estate,” regardless of what the will says. It exists so one spouse cannot disinherit the other, and under Florida Statutes Chapter 732, Part II, the 30% is calculated against a broad pool that reaches well beyond the probate estate, including certain trusts, jointly held property, payable-on-death accounts, and recent gifts. For Boca Raton homeowners whose wealth sits in real estate, that statute can either protect a vulnerable spouse or blow up a carefully built blended-family plan, depending entirely on how the estate is structured.

I have sat across the table from both sides of this. The widow who assumed she was provided for and discovered the house went to stepchildren. The adult children who watched a late-life spouse claim nearly a third of a parent’s lifetime of savings. Florida’s elective share is one of the few places in estate planning where the state overrides your written wishes, so it deserves more attention than most people give it.

What the Florida elective share actually is

The elective share is the surviving spouse’s right to take a fixed percentage of the deceased spouse’s estate instead of whatever the will or trust leaves them. In Florida, that percentage is 30% of the elective estate. The spouse elects against the estate, hence the name. They are not stuck with a token bequest or a complete disinheritance.

This is a Florida-specific creature. Florida is not a community-property state, so absent a rule like this, a spouse who held all the marital assets in their own name could legally leave the survivor nothing. The Legislature decided that outcome was unacceptable for a marriage, and the elective share is the floor it built. The rules live primarily in Florida Statutes sections 732.201 through 732.2155.

A few foundational points:

• The right belongs to the surviving spouse personally. It must be exercised; it is not automatic.
• The election is made by filing in the probate proceeding, generally within six months of being served with the notice of administration, and no later than two years after the decedent’s death (subject to extension under section 732.2135).
• It can be waived in advance through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure requirements under section 732.702.
• The homestead has its own separate protections that run alongside, not inside, the elective share.

The 30% is bigger than the will: the “elective estate”

This is where people get blindsided. The elective share is not 30% of what passes through probate. It is 30% of the elective estate, a deliberately expansive figure defined in section 732.2035 that pulls in assets you might assume are untouchable.

The elective estate generally includes:

1. The probate estate, what the will controls.
2. The decedent’s interest in property that passed by right of survivorship, such as joint bank accounts and jointly titled real estate.
3. Payable-on-death and transfer-on-death accounts, plus the cash surrender value of life insurance owned by the decedent.
4. Property in a revocable living trust, the very tool many people use specifically to avoid probate.
5. The decedent’s interest in retirement plans.
6. Certain property transferred within one year of death, and transfers where the decedent retained the right to income or the power to revoke.

The trap is obvious once you see it. A client comes in proud that they “avoided probate” by funding a revocable trust and adding TOD designations everywhere. They assume those assets are walled off from a new spouse’s claim. They are not. Revocable trust assets sit squarely inside the elective estate. Probate avoidance and elective-share avoidance are two completely different projects, and confusing them is one of the most common and expensive mistakes I see.

How the homestead complicates everything in South Florida

For Boca Raton owners, the family home is usually the center of gravity, and Florida treats homestead unlike any other asset. Three different homestead concepts collide here, and conflating them causes real damage.

Homestead descent and devise restrictions

Under Article X, Section 4 of the Florida Constitution and section 732.401, if the decedent is survived by a spouse, the homestead cannot be freely devised to anyone else. The default rule gives the surviving spouse a life estate in the homestead, with a vested remainder to the decedent’s descendants. The 1999 amendment to section 732.401 added a powerful option: instead of the life estate, the surviving spouse may elect to take an undivided one-half interest as a tenant in common, with the other half going to descendants. That election must be made within six months of death.

This matters because a life estate burdens the survivor with taxes, insurance, and maintenance on a property they cannot sell alone. The half-interest election is often the better path for a spouse who wants flexibility, but the deadline is unforgiving.

Homestead and the elective share interact

How the homestead is treated for elective-share purposes depends on what the spouse receives and how title was held. The valuation rules in section 732.2055 and the contribution rules in section 732.2075 govern how the homestead counts toward the 30% and who bears the burden of satisfying it. This is genuinely technical, and the answer changes based on whether the spouse takes the life estate, the half-interest, or full ownership. It is not a do-it-yourself area.

The practical lesson for a homestead-heavy estate is that you cannot plan the elective share without simultaneously planning the homestead. The two are joined at the hip, and a strategy that solves one while ignoring the other usually creates a new problem.

Protecting a surviving spouse: when you want the share to work

Most of my elective-share conversations are not about defeating the right. They are about a spouse in a first marriage, often the wife in a traditional household, who needs to be certain she is provided for. If that describes your situation, the goal is to make the protection airtight and to avoid accidental traps.

• Title the homestead to survive. Joint tenancy with right of survivorship or tenancy by the entireties passes the home directly to the survivor outside probate and outside most disputes. For married Florida residents, tenancy by the entireties also adds creditor protection.
• Coordinate beneficiary designations. Life insurance, IRAs, and annuities pass by contract. If the named beneficiary is an ex-spouse or an old trust, the will cannot fix it. Review every designation.
• Fund a marital trust correctly. An elective-share trust or QTIP-style marital trust can satisfy the 30% while still controlling the ultimate disposition, which is invaluable in blended families. The drafting must comply with the satisfaction rules in section 732.2025 and following.
• Mind the federal estate tax marital deduction when the estate is large enough to matter, so that protecting the spouse does not create an unnecessary tax bill.

If your wealth and family sit across two states, the planning gets harder. New York families navigating the parallel “right of election” should read Morgan Legal’s overview of , which walks through how life estates affect spousal rights and Medicaid planning differently than they do here in Florida.

Planning around the elective share in blended families

The other half of my caseload is the mirror image: a client on a second or third marriage who wants their children from a prior relationship to inherit the bulk of the estate, while still treating the new spouse fairly. Florida lets you plan around the elective share, but only through legitimate, well-documented tools. Hiding assets or last-minute gifting does not work, because the elective estate reaches back through revocable transfers and one-year gifts.

The clean approaches:

1. A prenuptial or postnuptial agreement. This is the cleanest, most defensible way to waive or limit the elective share. Under section 732.702, a waiver signed after marriage requires fair and reasonable disclosure of the other spouse’s assets. A premarital waiver can be enforced even without full disclosure if executed properly, which is why timing the conversation before the wedding matters.
2. Satisfying the share with a marital trust. You can fund the 30% through a qualifying trust that gives the spouse income for life while preserving the principal for your children. The spouse gets their statutory due; your kids get what remains.
3. Irrevocable transfers made well in advance. Because the elective estate captures revocable trust property and one-year gifts, only genuine, completed, irrevocable transfers made long before death fall outside the pool. These carry their own gift-tax and asset-protection consequences and must be done deliberately, not in a panic.
4. Life insurance as an equalizer. Sometimes the simplest fix is to satisfy the spouse with a dedicated life insurance benefit so the house and business stay with the children.

Whatever the goal, the will itself still has to be valid and current. A surprising number of disputes start because the underlying will was poorly drafted or outdated, which is a reminder that the foundation matters as much as the strategy. Morgan Legal’s primer on the is a useful baseline on what a sound will must contain, even though Florida and New York spousal rules differ in the details.

Deadlines and procedure: the part that quietly ends cases

The elective share is lost more often through missed deadlines than through bad strategy. The mechanics:

• The spouse files an election in the probate proceeding within six months after service of the notice of administration, or two years after death, whichever is earlier, with limited extensions under section 732.2135.
• The personal representative must value the elective estate, which often requires appraisals of real property and businesses.
• Assets are contributed proportionally to satisfy the 30%, following the abatement and contribution order in section 732.2075.
• Disputes over valuation and which assets bear the burden are common, especially when the homestead and a closely held business are involved.

If you are a surviving spouse who suspects you were short-changed, do not wait. The clock is short and it does not pause while you grieve. If you are a personal representative, you need counsel the moment an election looks likely, because the proportional contribution math is unforgiving and personal liability for getting it wrong is real.

Where to get this right in Boca Raton

Florida’s elective share rewards planning and punishes assumptions. The owners who get burned are almost always the ones who believed a revocable trust or a TOD designation solved a problem it never touched. Whether you are protecting a long-married spouse or balancing a blended family, the structure has to be built on purpose, with the homestead rules and the statutory deadlines accounted for from day one.

Our team handles Florida estate planning for homestead-heavy families across Palm Beach County. You can learn more about our approach to , review the basics on our wills page, see how a contested election plays out in Florida probate, or contact our office to map your specific situation before the statute decides it for you.

Frequently Asked Questions

How much is the elective share in Florida?

The Florida elective share is 30% of the deceased spouse’s elective estate under Florida Statutes section 732.2065. The elective estate is broader than the probate estate and includes revocable trust assets, joint and payable-on-death accounts, certain life insurance, retirement plans, and some transfers made within one year of death.

Can a revocable living trust avoid the Florida elective share?

No. Assets held in a revocable living trust are expressly included in the elective estate under section 732.2035, so they count toward the 30% the surviving spouse can claim. A revocable trust avoids probate but does not avoid the elective share. Waiving the share requires a valid prenuptial or postnuptial agreement, a qualifying marital trust, or genuine irrevocable transfers made well in advance of death.

Does the elective share apply to the homestead in Florida?

The homestead has its own constitutional descent and devise restrictions under Article X, Section 4 and section 732.401, which run alongside the elective share. A surviving spouse generally receives a life estate or may elect an undivided one-half interest within six months of death. How the homestead counts toward the 30% depends on what the spouse receives and how title is held, governed by sections 732.2055 and 732.2075.

How long does a surviving spouse have to claim the elective share?

The election must generally be filed within six months after the spouse is served with the notice of administration, and no later than two years after the decedent’s death, with limited extensions available under section 732.2135. Missing the deadline typically forfeits the right, so a surviving spouse who suspects they were under-provided for should consult a Florida probate attorney promptly.

Can the elective share be waived in a prenup?

Yes. A surviving spouse can waive the elective share through a valid prenuptial or postnuptial agreement under section 732.702. A premarital waiver can be enforced without full financial disclosure if properly executed, but a postnuptial waiver requires fair and reasonable disclosure of the other spouse’s assets. This is the cleanest way for blended-family clients to plan around the share.