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How to Keep Your Spouse Happy (Even After You're Gone): Elective Share Planning in Florida


Estate planning is an essential part of securing your assets and providing for your loved ones after your death. A key element of estate planning is the creation of a trust, which allows you to transfer your assets to your beneficiaries while minimizing the impact of taxes and other expenses. One type of trust that is frequently used in estate planning in Florida is the elective share trust.


What is an Elective Share Trust?


An elective share trust is a trust that is designed to provide for a surviving spouse when the other spouse dies. In Florida, a surviving spouse has a right to a portion of the deceased spouse’s estate, even if the deceased spouse’s will or trust leaves nothing to the surviving spouse. This is known as the “elective share,” and it is intended to prevent a spouse from being left with nothing after the other spouse’s death. However, the elective share can also be a problem for estate planning purposes, especially if you want to leave your assets to someone other than your spouse. This is where the elective share trust comes in.


An elective share trust is a type of trust that is designed to satisfy the surviving spouse’s elective share while allowing the deceased spouse to control the distribution of his or her assets. Essentially, the trust is funded with assets that are not subject to the elective share, and the surviving spouse receives a portion of the income from the trust for the rest of his or her life.


How is an Elective Share Trust Created?


To create an elective share trust, you will need to work with an estate planning attorney who is familiar with Florida law. Your attorney will help you determine the best way to structure the trust to meet your specific needs and goals.


Generally, an elective share trust is created by drafting a trust agreement that specifies the terms of the trust. The agreement will identify the assets that will be used to fund the trust and how the income from the trust will be distributed to the surviving spouse.

The trust agreement will also specify who will serve as the trustee of the trust, and how the trustee will manage the assets of the trust. It is important to choose a trustee who is trustworthy and competent, as this person will be responsible for managing the trust and making distributions to the surviving spouse.


Benefits of an Elective Share Trust


There are several benefits to using an elective share trust in estate planning in Florida:

  1. Control: An elective share trust allows the deceased spouse to maintain control over the distribution of his or her assets, rather than leaving the decision up to the surviving spouse.

  2. Flexibility: An elective share trust can be structured in a variety of ways to meet the specific needs of the parties involved. For example, the trust can be designed to provide for children from a previous marriage, or to support a charity.

  3. Tax benefits: By using an elective share trust, you may be able to minimize the impact of taxes and other expenses on your estate.

  4. Privacy: An elective share trust can be created without going through probate, which can help maintain privacy and avoid public scrutiny.


To sum it up, elective share trusts are a powerful tool in estate planning in Florida. By using an elective share trust, you can provide for your surviving spouse while maintaining control over the distribution of your assets. To learn more about how an elective share trust can benefit your estate plan, speak with one of attorneys at Yergey and Yergey P.A.

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