The Florida elective share is a surviving spouse’s statutory right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. It exists so a person cannot fully disinherit a husband or wife. Codified in Chapter 732, Part II of the Florida Statutes (sections 732.201 through 732.2155), it reaches far beyond the probate estate to capture trusts, jointly held assets, certain retirement accounts, and even some gifts made before death.
If you are a surviving spouse who feels shortchanged by an estate plan, or a couple trying to structure your assets so a second marriage and adult children from a first marriage can both be provided for, the elective share is one of the most important and least understood rules in Florida estate law. Below, a practical walk-through from the perspective of attorneys who handle these cases every week in South Florida.
What the Florida Elective Share Actually Is
Florida is not a community property state. Spouses do not automatically own half of everything acquired during marriage. Instead, Florida protects a surviving spouse through the elective share: a guaranteed 30% slice of the marital wealth the decedent controlled, computed across a broad pool of assets called the elective estate.
The key word is elective. Nothing happens automatically. A surviving spouse who has been left less than 30% must affirmatively elect to take the share by filing with the probate court. If the spouse does nothing within the deadline, the right is lost and the estate plan controls as written.
This is distinct from two other Florida spousal protections people often confuse it with:
- Homestead rights — special constitutional protections on the primary Florida residence, including a surviving spouse’s right to a life estate or a 50% tenancy-in-common interest under section 732.401.
- Family allowance and exempt property — a separate cash allowance (up to $18,000 under section 732.403) and certain exempt personal property the spouse can claim apart from the elective share.
A surviving spouse may be entitled to all of these at once. They stack; they are not mutually exclusive.
How the 30% Is Calculated: The Elective Estate
The number that trips people up is not the 30% — it is the base it applies to. Section 732.2035 defines the elective estate broadly so that a spouse cannot be disinherited through non-probate workarounds. The elective estate generally includes:
- The decedent’s probate estate (assets passing under the will or by intestacy).
- The decedent’s interest in property that passed by right of survivorship, such as joint bank accounts and jointly titled real estate.
- Pay-on-death and transfer-on-death accounts.
- Revocable (living) trust assets — a critical inclusion, because many people wrongly assume a funded revocable trust escapes the elective share. It does not.
- The net cash surrender value of life insurance on the decedent’s life.
- The decedent’s interest in retirement plans and certain death benefits.
- Certain property transferred within one year of death and gifts made in contemplation of avoiding the elective share.
Once the elective estate is totaled, you subtract enumerated deductions — valid claims against the estate, certain mortgages and liens, and similar items under section 732.2055 — then multiply by 30%. That figure is the elective share amount the surviving spouse is entitled to receive.
An Illustration
Suppose a husband dies leaving a $400,000 probate estate to his children from a first marriage, a $1,000,000 revocable trust also benefiting those children, and a $200,000 joint account that passes to a child by survivorship. His will leaves his second wife nothing.
The elective estate here is roughly $1,600,000. The wife’s elective share is 30%, or about $480,000 — even though the will gave her zero, and even though most of the wealth sat in a trust and a joint account the husband may have believed were “outside” her reach. They were not.
Satisfying the Share: Who Pays and From What
Florida does not simply hand the spouse a check. Section 732.2075 sets an order for which assets are tapped to satisfy the elective share. Property already passing to the surviving spouse — say, a marital home or a bequest in the will — counts first toward the 30%. Only the shortfall must be made up from other recipients, and the statute apportions that burden proportionally among the beneficiaries and the elective estate’s components.
This matters enormously in blended-family planning. If a spouse is already receiving a substantial bequest or a qualifying interest in trust, the additional amount owed may be small or nothing at all. Structuring the plan so the spouse’s interests count toward the share is the heart of good drafting.
Strict Deadlines a Surviving Spouse Cannot Miss
The elective share is a use-it-or-lose-it right with hard deadlines under section 732.2135. The election must generally be filed by the earlier of:
- Six months after service of the notice of administration on the surviving spouse, or
- Two years after the decedent’s date of death.
There is a limited ability to request an extension if filed before the deadline runs, but waiting is dangerous. We have seen surviving spouses lose six-figure rights simply because grief and confusion ran out the clock. If you have been served with a notice of administration in a Florida probate, treat that document as a ticking deadline and consult counsel immediately. Our South Florida probate team can confirm your timeline at no cost in an initial call.
Planning Around the Elective Share (Legitimately)
For couples — especially second marriages — the goal is rarely to cheat a spouse. It is to honor both the spouse and children from a prior relationship in a predictable way. Florida law gives you several legitimate tools.
1. The Elective Share Trust
Rather than handing the spouse 30% outright, the plan can fund a qualifying trust that pays the spouse income for life, with the remainder going to the decedent’s children. Under section 732.2025 and related provisions, an interest in a properly structured trust can be valued and credited against the elective share. This keeps the principal in the family bloodline while still satisfying the spouse’s statutory right.
2. Prenuptial and Postnuptial Agreements
The cleanest way to plan around the elective share is to waive it by contract. Section 732.702 expressly permits a spouse to waive elective share, homestead, and other rights in a written agreement signed before or during the marriage. To hold up, the waiver must be voluntary and — if signed after marriage — supported by fair and reasonable disclosure of the other spouse’s assets. A well-drafted prenuptial or postnuptial agreement is often the single most effective protection for children of a prior marriage.
3. Coordinated Lifetime Gifting and Titling
Because the elective estate reaches back to capture gifts made within a year of death and assets in revocable trusts, casual workarounds fail. Thoughtful lifetime planning — irrevocable structures established well in advance, with independent counsel for each spouse — can shift assets outside the elective estate, but only when done correctly and not as a deathbed maneuver. This is where experienced drafting separates a plan that holds up from one that invites litigation.
4. Adequate Provision Inside the Plan
Sometimes the smartest move is simply to leave the spouse at or above the 30% threshold in a controlled form, removing any incentive to elect. A surviving spouse who is already well provided for has little reason to trigger an adversarial election.
How This Connects to Multi-State Estates
Many South Florida families keep ties to the Northeast — a co-op or condo in Manhattan, family property upstate, or accounts held in New York. Spousal-protection law differs sharply by state, and assets in another jurisdiction can complicate both probate and the elective-share math. New York, for example, uses a one-third “right of election” with its own rules on testamentary substitutes. If you hold property up north, coordinate your Florida plan with New York counsel.
Techniques such as New York home transfers and retained life estates can change how out-of-state real property fits into a surviving spouse’s rights, and a properly executed New York last will and testament should be drafted in harmony with your Florida documents so the two estates do not work against each other. For the Florida side, our colleagues outline the full process on the Florida estate planning practice page.
Common Mistakes We See
- Assuming a revocable trust defeats the share. It is squarely inside the elective estate. This is the single most expensive misconception.
- Relying on joint accounts and beneficiary designations. Survivorship and POD assets are counted, not excluded.
- Signing a “DIY” prenup without disclosure. An agreement that lacks fair disclosure or independent counsel can be thrown out, leaving the full 30% exposed.
- Surviving spouses sitting on their rights. Miss the deadline and the right vanishes, no matter how unfair the will.
- Ignoring homestead. The Florida homestead can override what the will says about the house entirely; it must be planned alongside the elective share.
When to Bring in a Florida Attorney
The elective share sits at the intersection of probate litigation, trust administration, and tax-sensitive drafting. Whether you are a surviving spouse weighing whether to elect, or a couple building a blended-family plan, the margin for error is small and the deadlines are unforgiving. Review your will and trust documents and your Florida probate exposure with counsel before any election deadline approaches. A short consultation now can protect a share worth hundreds of thousands of dollars later.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s elective estate under section 732.2065 of the Florida Statutes. The elective estate is a broad pool that includes the probate estate, revocable trust assets, jointly held and pay-on-death accounts, certain life insurance and retirement benefits, and some gifts made within a year of death.
Can a revocable living trust avoid the elective share in Florida?
No. Assets in a revocable (living) trust are expressly included in the elective estate under section 732.2035. This is the most common and most costly misconception. A spouse cannot be disinherited simply by moving assets into a funded revocable trust.
What is the deadline to claim the elective share?
Under section 732.2135, a surviving spouse must file the election by the earlier of six months after being served with the notice of administration or two years after the date of death. A limited extension may be requested before the deadline runs, but missing it forfeits the right entirely.
Can a spouse waive the Florida elective share?
Yes. Section 732.702 allows a spouse to waive the elective share, homestead, and other rights through a written prenuptial or postnuptial agreement. To be enforceable, the waiver must be voluntary, and a postnuptial waiver also requires fair and reasonable disclosure of assets. This is a primary tool in second-marriage planning.
Does the elective share include the family home?
The home is treated under separate Florida homestead rules in section 732.401, which can give the surviving spouse a life estate or a 50% interest. Homestead protections and the elective share are distinct and can apply at the same time, so both must be coordinated when planning.
For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles how a will is contested in New York.