The Florida Elective Share: A Surviving Spouse's Right to 30%
Fla. Stat. §§ 732.201–732.2155
The surviving spouse of someone who died domiciled in Florida may claim an elective share of 30% of the elective estate, even if the will or trust leaves the spouse little or nothing (Fla. Stat. §§ 732.201, 732.2065). The election is due by the earlier of six months after service of the notice of administration or two years after death.
What it is
Florida does not let one spouse fully disinherit the other. Under Fla. Stat. § 732.201, the surviving spouse of a person who dies domiciled in Florida has the right to a share of the decedent's "elective estate," called the elective share. The share is 30% of the elective estate (§ 732.2065). The right applies whatever the will or trust says, unless the spouse validly waived it under § 732.702.
The elective estate is much broader than the probate estate. It includes the probate estate; the decedent's interest in protected homestead; payable-on-death, transfer-on-death, in-trust-for, and survivorship accounts and securities; the decedent's fractional share of property held in joint tenancy or tenancy by the entirety; property the decedent could revoke at death, such as a revocable trust; the net cash surrender value of life insurance on the decedent's life; most pension, retirement, and deferred compensation benefits payable at death; and certain transfers made in the year before death (§ 732.2035). Most property is valued as of the date of death, net of claims, mortgages, and liens (§ 732.2055(6)).
The election works as a top-up, not a trade. Electing does not reduce what the spouse would receive without the election (§ 732.201). Instead, what already passes to the spouse — under the will, a trust, a beneficiary designation, or a homestead interest — is applied first toward the 30% (§ 732.2075(1)). Only if those interests fall short do the other recipients of the elective estate contribute the difference.
The elective share is in addition to the spouse's rights to homestead, exempt property, and the family allowance (§ 732.2105). Because the homestead is also counted in the elective estate, the two sets of rules interact; see the homestead section below and our page on homestead property in Florida probate. A spouse who married the decedent after the will was signed may also have a pretermitted spouse claim.
Who Can Elect
Under Fla. Stat. §§ 732.201, 732.2125, and 732.702, the right of election works as follows:
- It may be exercised by the surviving spouse of a person who died domiciled in Florida (§§ 732.201, 732.2125(1)).
- It may be exercised by an attorney in fact (an agent under a power of attorney) or a guardian of the property of the surviving spouse, but only with approval of the court handling the probate. Before approving, the court must determine that the election is in the best interests of the surviving spouse during the spouse's probable lifetime (§ 732.2125(2)).
- It may not be exercised by a spouse who validly waived the elective share in a written agreement signed before two subscribing witnesses, before or after the marriage (§ 732.702(1)).
Some property is left out of the elective estate entirely, including life insurance proceeds above the policy's net cash surrender value and policies kept under a court order (§ 732.2045(1)(d)–(e)); transfers made for adequate consideration or with the spouse's written consent (§ 732.2045(1)(b)–(c)); transfers that became irrevocable before the marriage (§ 732.2045(1)(a)); property in a qualifying special needs trust for the spouse (§ 732.2045(1)(g)); and Social Security and federal Railroad Retirement benefits (§ 732.2035(8)).
Elective Share vs. Pretermitted Spouse Share
| Aspect | Elective share | Pretermitted spouse share |
|---|---|---|
| Governing statute | Fla. Stat. §§ 732.201–732.2155 | Fla. Stat. § 732.301 |
| Who qualifies | Surviving spouse of a Florida domiciliary, unless waived | Spouse who married the testator after the will was made, unless an exception applies |
| Amount | 30% of the elective estate (§ 732.2065) | The spouse's intestate share (§§ 732.301, 732.102) |
| Reaches non-probate assets | Yes — trusts, joint and POD accounts, retirement benefits (§ 732.2035) | Raised from the estate in the order of § 733.805 |
| Can be waived by agreement | Yes (§ 732.702) | Yes (§§ 732.301(1), 732.702) |
The Deadline to Elect and How the Share Is Paid
The election must be filed on or before the earlier of two dates: six months after a copy of the notice of administration is served on the surviving spouse (or the spouse's attorney in fact or guardian of the property), or two years after the date of death (Fla. Stat. § 732.2135(1)). The notice of administration itself must state this deadline (§ 733.212(2)(e)). Because the two-year date applies in every case, it runs even if no one opens probate.
- Extension: within the election period, or within 40 days after a proceeding that affects the amount the spouse receives ends (if later), but never more than two years after death, the spouse, attorney in fact, or guardian of the property may petition for more time. The court may extend the time for good cause (§ 732.2135(2)).
- Tolling: a petition for an extension, or for court approval to make the election, tolls the time for making the election (§ 732.2135(4)).
- Withdrawal: an election may be withdrawn within eight months after the decedent's death and before the court's order of contribution (§ 732.2135(3)).
- Order of contribution: the court determines the elective share and the contribution owed by each recipient (§ 732.2145(1)).
- Order of sources: property passing to the spouse is applied first (§ 732.2075(1)). Any shortfall is charged to the probate estate and revocable trusts (Class 1), then to recipients of payable-on-death and transfer-on-death accounts, jointly held property, life insurance cash value, and certain other interests (Class 2), then to all other recipients (Class 3) (§ 732.2075(2)).
- Collection: the personal representative collects contribution under the order and withholds it from distributions to recipients who owe it (§ 732.2145(2)). The spouse may also enforce the order directly and recover costs and reasonable attorney's fees (§ 732.2145(4)).
- Interest: any part of the elective share not satisfied within two years after death bears interest at the statutory rate, and contributions bear interest beginning 90 days after the order of contribution (§ 732.2145(1)).
Waiver by Prenuptial or Postnuptial Agreement
A spouse may waive the elective share, wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the waiving party in the presence of two subscribing witnesses (Fla. Stat. § 732.702(1)). No consideration is needed beyond signing the agreement itself (§ 732.702(3)).
Disclosure depends on timing. If the agreement is signed after the marriage, each spouse must make a fair disclosure of his or her estate to the other. No disclosure is required for an agreement signed before the marriage (§ 732.702(2)).
Unless the document provides otherwise, a waiver of "all rights" (or similar language) in the property or estate of a present or prospective spouse, or a complete property settlement made after or in anticipation of separation or divorce, waives the elective share along with intestate, pretermitted, homestead, exempt property, and family allowance rights (§ 732.702(1)). An agreement signed by a nonresident of Florida is valid here if it was valid where it was signed (§ 732.702(1)). For how these agreements fit a second-marriage plan, see estate planning for blended families.
How Protected Homestead Fits In
The decedent's interest in protected homestead is part of the elective estate (Fla. Stat. § 732.2035(2)). How much it counts depends on what the spouse takes. If the spouse receives the home in fee simple, its full fair market value at death counts. If the spouse takes a life estate under § 732.401(1), or elects a one-half interest as a tenant in common under § 732.401(2), one-half of the home's fair market value counts (§ 732.2055(1)(a)). Mortgages, liens, and security interests the decedent was liable for are deducted (§ 732.2055(1)(b)).
The same rule applies when crediting the spouse. A homestead life estate, or a one-half tenant-in-common interest, is valued at one-half of the property's value when it is applied toward the spouse's 30% (§ 732.2095(2)(a)–(b)). A homestead interest can therefore satisfy part or all of the elective share.
If the spouse validly waived homestead rights under § 732.702 and receives no interest in the protected homestead, the homestead is excluded from the elective estate (§ 732.2045(1)(i)). Note the separate deadline: the election to take a one-half homestead interest instead of a life estate must be made within six months after the decedent's death (§ 732.401(2)(b)), measured from the death rather than from service of the notice of administration. For the rules on who may receive the homestead, see homestead devise restrictions.
Elective Share Trusts
An estate plan can satisfy the elective share in trust. An "elective share trust" is one in which the surviving spouse is entitled for life to the use of the property or to all of the income, paid at least annually; the spouse can require the trustee to make the property productive or convert it; and no one other than the spouse can receive income or principal during the spouse's life (Fla. Stat. § 732.2025(2)).
The spouse's interest in an elective share trust counts toward the 30% at 100% of the trust principal if the trust includes both a qualifying invasion power and a qualifying power of appointment, 80% if it includes only the qualifying invasion power, and 50% in all other cases (§ 732.2095(2)(d)).
Getting Advice on an Elective Share Claim
Filing the election is a short step. The work around it is not: identifying everything in the elective estate, including assets that never pass through probate; valuing each interest under §§ 732.2055 and 732.2095; crediting what already passes to the spouse; and collecting contribution from recipients under the court's order (§ 732.2145). A surviving spouse deciding whether to elect, and a personal representative or family responding to an election, each need that analysis done on the actual assets before the deadline. An election by an agent or guardian also requires court approval first (§ 732.2125(2)).
Frequently Asked Questions
Can a spouse be disinherited in Florida?
Not completely, unless the spouse waived his or her rights. The surviving spouse of a person who died domiciled in Florida may elect 30% of the elective estate, which reaches probate assets, revocable trusts, joint and payable-on-death accounts, retirement benefits, and more (Fla. Stat. §§ 732.201, 732.2035, 732.2065). The elective share is in addition to homestead, exempt property, and family allowance rights (§ 732.2105). A valid prenuptial or postnuptial waiver under § 732.702 changes this.
What is the deadline to file for the elective share in Florida?
The election must be filed by the earlier of six months after the notice of administration is served on the surviving spouse, or two years after the date of death (Fla. Stat. § 732.2135(1)). The court may extend the time for good cause if a petition is filed within the allowed period, but not beyond two years after death (§ 732.2135(2)). A petition for an extension tolls the deadline while it is pending (§ 732.2135(4)).
Does life insurance count toward the Florida elective share?
Only in part. The elective estate includes the net cash surrender value, immediately before death, of a policy on the decedent's life (Fla. Stat. § 732.2035(7)). Proceeds above that cash value are excluded, as is a policy maintained under a court order (§ 732.2045(1)(d)–(e)). Separately, insurance proceeds actually paid to the spouse from a policy owned by someone other than the spouse are applied toward the spouse's share (§ 732.2075(1)(d)).
Are retirement accounts part of the elective estate in Florida?
Generally, yes. Amounts payable to anyone by reason of surviving the decedent under a public or private pension, retirement, or deferred compensation plan are included; Social Security and federal Railroad Retirement benefits are not (Fla. Stat. § 732.2035(8)). Benefits paid to the spouse are applied toward the share first (§ 732.2075(1)(b)). A plan administrator that pays the named beneficiary in good-faith reliance on the designation is not liable (§ 732.2115); recipients may instead owe contribution (§ 732.2085).
Do gifts made before death count toward the elective share?
Some do. Property the decedent transferred during the one year before death is included, except payments for tuition or medical care that qualify for the federal gift-tax exclusion and the first annual-exclusion amount given to each recipient (Fla. Stat. § 732.2035(9)). Transfers made for adequate consideration, or with the spouse's written consent, are excluded (§ 732.2045(1)(b)–(c)). Property the decedent could still revoke at death, such as a revocable trust, is included regardless of when it was transferred (§ 732.2035(5)).
Can a guardian or agent take the elective share for a spouse with dementia?
Yes, but only with court approval. An attorney in fact or guardian of the property of the surviving spouse may make the election if the probate court first determines that the election is in the spouse's best interests during the spouse's probable lifetime (Fla. Stat. § 732.2125(2)). A petition for approval to make the election tolls the deadline (§ 732.2135(4)), so it should be filed before the election period runs out.
Does taking the elective share mean giving up what the will leaves the spouse?
No. The election does not reduce what the spouse would receive if no election were made (Fla. Stat. § 732.201). Instead, property passing to the spouse under the will, trusts, beneficiary designations, or a homestead interest is counted first toward the 30% (§ 732.2075(1)), and other recipients contribute only the shortfall. If what the spouse already receives equals or exceeds 30% of the elective estate, the election adds nothing.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Questions about a spouse's elective share?
Whether you are a surviving spouse deciding whether to elect or a personal representative responding to an election, call (407) 843-0430 or schedule a consultation with an Orlando probate attorney.
Or text PROBATE to (407) 906-9507 for a faster response.
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