Spousal Rights and the Elective Share

A surprising number of Boca Raton residents believe they can leave a spouse out of their will entirely. Florida law says otherwise. The state strongly protects surviving spouses, and understanding those protections prevents painful surprises, especially in blended families and second marriages. Here are the questions we hear most.

Can I disinherit my spouse in Florida?

Generally, no, not fully. Florida’s elective share statute, found at Florida Statutes section 732.2065 and the sections that follow, gives a surviving spouse the right to claim 30% of the deceased spouse’s elective estate, regardless of what the will or trust says. So even if your documents leave everything to your children from a prior marriage, your surviving spouse can elect to take their statutory share instead. This is one of the most important and least understood rules in Florida estate planning.

What counts toward the elective estate?

The elective estate is broader than just probate assets. Florida intentionally designed it to include many non-probate transfers, such as certain trust assets, some jointly held property, payable-on-death accounts, and certain life insurance and retirement values. The point is to stop someone from sidestepping the protection by simply moving assets out of the will. Because the calculation is detailed, Boca Raton couples should not assume a particular asset is exempt without checking.

What about our Boca Raton homestead?

Homestead is separate from, and in addition to, the elective share. Under Article X, section 4 of the Florida Constitution, a surviving spouse has strong rights in the marital residence. If you have a spouse or minor child, you generally cannot freely leave the homestead to someone else. A surviving spouse typically receives at least a life estate, or may elect a one-half interest, in the homestead. These rules frequently override what a will tries to do, so the family home needs careful planning.

Does my spouse get anything else?

Yes. Florida also provides a surviving spouse with a family allowance during administration, exempt personal property, and intestate rights if there is no valid will. Together with the elective share and homestead protections, these layers mean a Florida spouse is rarely left with nothing, even if a will tries to exclude them.

Can a prenup or postnup change this?

Yes, and this is often the right tool for Boca Raton couples in second marriages. A properly drafted and validly executed marital agreement can waive the elective share and certain homestead and spousal rights. The waiver must meet Florida’s requirements, including fair disclosure, to hold up. Many couples use these agreements specifically so each spouse can provide for children from prior relationships with confidence.

What should blended families do?

Blended families face the highest risk of conflict here. The combination of the elective share and homestead can unintentionally divert assets away from your children, or trigger litigation between your spouse and your kids. Thoughtful planning, often using trusts and clear agreements, lets you provide for both your spouse and your children in a way Florida courts will respect.

Talk to a Florida attorney

Spousal rights are among the most rigid features of Florida law, and the elective-share math is genuinely complex. A licensed Florida estate planning attorney serving Boca Raton can help you honor your spouse’s rights, protect your children, and avoid the disputes that catch unprepared families off guard.