Florida Elective Share: Protecting or Planning Around a Surviving Spouse

The Florida elective share is a surviving spouse’s statutory right to claim 30 percent of the deceased spouse’s “elective estate,” regardless of what the will or trust says. Under Florida Statutes § 732.2065, this right cannot be erased by simply disinheriting a spouse on paper. For physicians, business owners, and other professionals whose wealth is spread across trusts, retirement accounts, and jointly titled property, understanding how the elective share is calculated is the difference between a plan that holds up and one that gets unwound in probate court.

I’ve sat across the table from both sides of this issue in Miami and across South Florida: the surviving spouse who was quietly written out, and the adult children from a first marriage who assumed a revocable trust would shut the second spouse out entirely. Both walked in with the wrong assumptions. This article explains how the elective share actually works, what counts toward it, and the legitimate ways to plan around it.

What the Florida Elective Share Is

Florida is not a community property state, but it does not let one spouse strip the other of an inheritance. The elective share is the compromise. It guarantees a surviving spouse a fixed percentage of the deceased spouse’s wealth, computed across a broad pool of assets, not just the probate estate.

The mechanics live in Part II of Chapter 732 of the Florida Statutes (sections 732.201 through 732.2155). Three provisions do most of the work:

• § 732.2065 sets the amount: an elective share equal to 30 percent of the elective estate.
• § 732.2035 defines the elective estate, the much larger pool the 30 percent is measured against.
• § 732.2025 through § 732.2155 govern how the share is satisfied, valued, and apportioned among the people who would otherwise receive the assets.

The key insight is the breadth of the “elective estate.” A common and expensive mistake is assuming that moving assets out of the probate estate, say, into a revocable living trust or a payable-on-death account, removes them from the calculation. It does not.

What Counts in the “Elective Estate”

Section 732.2035 sweeps a wide range of property into the elective estate so that the 30 percent figure reflects real economic value, not just what happened to pass through a will. The elective estate generally includes:

1. The probate estate, everything that passes under the will or by intestacy.
2. Protected homestead, the decedent’s Florida homestead property, valued under special rules.
3. Pay-on-death and transfer-on-death accounts, plus “in trust for” accounts and similar arrangements the decedent could withdraw from without accounting to anyone.
4. The decedent’s interest in joint tenancies with right of survivorship and tenancies by the entirety, counted as a fractional interest.
5. Revocable trust property, assets the decedent controlled and could revoke or amend up to the date of death.
6. Certain transfers made within one year of death and certain retained-interest transfers, designed to prevent deathbed end-runs around the statute.
7. The cash surrender value of life insurance the decedent owned on his or her own life, and the value of certain retirement and pension benefits.

For a professional with a layered estate, this list is sobering. The revocable trust you built to avoid probate is fully exposed to the elective share. So is the brokerage account you re-titled as transfer-on-death to your children. The statute was written precisely to defeat those moves.

What generally falls outside the elective estate

Not everything is captured. Property the surviving spouse already received and consented-to arrangements can reduce or satisfy the obligation. Irrevocable transfers made well before death and outside the statute’s reach, gifts that fall under the annual exclusion, and assets governed by a valid waiver are typically excluded. The line between “in” and “out” is technical, and small drafting differences change the answer. This is one of the few estate-planning areas where do-it-yourself titling causes the most damage.

How the Surviving Spouse Claims It

The elective share is not automatic. A surviving spouse must affirmatively elect it, and the deadlines are strict. The election must be filed with the probate court by the earlier of:

• Six months after service of the notice of administration, or
• Two years after the decedent’s date of death.

Miss the window and the right is gone. An incapacitated spouse can elect through a guardian or attorney-in-fact under certain conditions, but the timing still controls. If you are a surviving spouse who suspects you were shortchanged, the calendar is your enemy, talk to a Florida probate attorney before the six-month clock runs out.

Planning to Protect a Surviving Spouse

For couples who want the surviving spouse provided for, the elective share is a floor, not a ceiling. Most well-built plans give the spouse far more than 30 percent and never trigger an election. The protective tools include:

• Elective share trusts. Section 732.2025 recognizes a qualifying trust, one giving the surviving spouse the use of property or all income at least annually, with the power to make the property productive, that can be credited toward satisfying the share. This lets you provide for a spouse while keeping principal directed to children from a prior marriage.
• Marital and QTIP trusts that combine spousal protection with estate-tax planning, especially relevant for professionals approaching the federal exemption.
• Clear beneficiary coordination so that life insurance, retirement accounts, and trust distributions work together rather than accidentally over- or under-funding the spouse.

Estate planning that integrates trusts with retained interests and lifetime transfers requires real precision; the way property is titled and the powers retained over it drive the tax and elective-share outcome. Firms that handle these structures, such as Morgan Legal’s discussion of , illustrate how the same titling decisions ripple through both probate exposure and spousal rights, principles that translate directly to Florida planning.

Planning Around the Elective Share (Legitimately)

Second marriages, blended families, and business-succession concerns often push a client to limit, rather than maximize, a spouse’s claim. There are lawful ways to do this. There are also tempting shortcuts that backfire.

Prenuptial and postnuptial waivers

The cleanest tool is a written waiver. Under § 732.702, a spouse may waive elective-share rights (and homestead, intestate, and family-allowance rights) in a valid prenuptial or postnuptial agreement. A prenuptial agreement needs no financial disclosure to be enforceable as to these waivers; a postnuptial agreement signed during the marriage requires fair and reasonable disclosure of the other spouse’s assets. Get the formalities wrong and the waiver collapses, taking your whole plan with it.

Lifetime gifting and irrevocable structures

Because the elective estate reaches revocable transfers and certain transfers within a year of death, the assets that genuinely escape are those given away outright, long before death, with no strings attached, or placed in properly drafted irrevocable trusts that fall outside the statute’s defined categories. Timing and retained control are everything. A transfer that looks irrevocable but leaves the decedent with too much access can be pulled right back into the elective estate.

What does not work

• A will that simply disinherits the spouse. It is overridden by the election.
• Moving everything into a revocable trust. Fully counted under § 732.2035.
• Re-titling accounts as POD or TOD to the kids. Counted.
• Deathbed transfers. The one-year lookback and retained-interest rules capture most of these.

For the foundational documents, a properly drafted will remains the backbone of any plan, and the same care that goes into a in other jurisdictions applies in Florida, with the added overlay of these spousal-rights statutes. Floridians coordinating multi-state property or family ties should also review the firm’s Florida for state-specific guidance.

The Professional’s Special Exposure

Physicians and high-earning professionals tend to accumulate exactly the kinds of assets the elective-share statute targets: large retirement and pension balances, life insurance, jointly held real estate, and brokerage accounts re-titled for convenience. Add a second marriage and children from a first, and the elective share becomes the single most litigated issue in the estate.

The fix is rarely dramatic. It is usually a coordinated plan, a valid waiver where appropriate, an elective share or QTIP trust, and titling that matches the intended outcome, reviewed by counsel who does this work. A short planning conversation now is far cheaper than a contested election later. If you want to map your own exposure, our team can walk through your asset structure; start with our contact page, and review related material on wills and Florida probate.

Bottom Line

Florida’s elective share gives a surviving spouse a guaranteed 30 percent of a broadly defined elective estate, and it is built to defeat the obvious workarounds. Whether your goal is to protect a spouse or to lawfully channel wealth elsewhere, the result turns on statutory detail, titling, trust language, valid waivers, and timing, not on hope. Build the plan deliberately, and the elective share becomes a tool you control rather than a surprise that controls your estate.

This article is general information about Florida law and is not legal advice. Consult a licensed Florida attorney about your specific situation.

Frequently Asked Questions

How much is the elective share in Florida?

Under Florida Statutes section 732.2065, the elective share equals 30 percent of the decedent’s elective estate. The elective estate is a broad pool defined in section 732.2035 that includes the probate estate, revocable trust assets, POD/TOD accounts, jointly held property, protected homestead, certain life insurance and retirement benefits, and some transfers made within a year of death.

Can a spouse be completely disinherited in Florida?

No, not unilaterally. A will or trust that leaves nothing to a surviving spouse can be overridden by the elective share election, giving the spouse 30 percent of the elective estate. The only reliable way to limit or eliminate the share is a valid prenuptial or postnuptial waiver under section 732.702, or lawful lifetime transfers that fall outside the elective estate.

What is the deadline to claim the Florida elective share?

A surviving spouse must file the election with the probate court by the earlier of six months after service of the notice of administration or two years after the date of death. Missing this deadline permanently forfeits the right, so a spouse who suspects they were shortchanged should consult a Florida probate attorney promptly.

Does a revocable living trust avoid the elective share?

No. Assets in a revocable living trust are expressly included in the elective estate under section 732.2035 because the decedent retained the power to revoke or amend the trust until death. Funding a revocable trust avoids probate but does not shield those assets from a surviving spouse’s elective share claim.

Can a prenuptial agreement waive the elective share?

Yes. Under section 732.702, a spouse may waive elective-share, homestead, and intestate rights in a valid written agreement. A prenuptial agreement requires no financial disclosure to enforce these waivers, but a postnuptial agreement signed during the marriage requires fair and reasonable disclosure of the other spouse’s assets to be enforceable.