The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” even if the will or trust leaves them little or nothing. It exists so that no married person in Florida can fully disinherit a husband or wife. For adult children helping an aging parent organize their affairs, this single rule can quietly override years of careful planning, so it pays to understand it before signing anything.
If you are sorting out a parent’s estate plan in Miami, especially when there is a second marriage, a blended family, or a much younger spouse, the elective share is one of the first things an experienced Florida attorney checks. It is governed by Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), and it is far broader and harder to dodge than most families expect.
What Is the Florida Elective Share?
Under Fla. Stat. 732.201, the surviving spouse of a person who dies domiciled in Florida has the right to a share of the estate called the elective share. Fla. Stat. 732.2065 fixes that share at 30% of the elective estate. The spouse can choose to take this statutory amount instead of whatever the will, trust, or beneficiary designations actually leave them.
The key word is elective. The surviving spouse is not forced to take 30%. They make a choice. If the will already leaves them more than the elective share, they simply accept the will. If the plan tries to cut them out, or leaves them only a small slice, they can file to claim the full 30% instead. That decision usually comes down to math and the surviving spouse’s own circumstances.
This right is personal to the spouse. It can be exercised by the spouse, by their guardian or agent under a durable power of attorney with proper authority, and in limited situations after the spouse’s death. It is not a right that the deceased spouse’s children can invoke or waive on the spouse’s behalf.
Why the Rule Exists
Florida, unlike a handful of other states, is not a community property state. Without an elective share, a spouse who held title to almost everything could leave the marital home, the bank accounts, and the brokerage account entirely to children from a prior marriage, a sibling, or a friend. The elective share is the Legislature’s backstop against that outcome. It reflects a public policy that marriage creates an economic partnership the law will protect at death.
What Counts Toward the Elective Estate
Here is where families are most often caught off guard. The 30% is not calculated only on the probate estate. Florida deliberately casts a wide net under Fla. Stat. 732.2035 so that you cannot defeat a spouse simply by retitling assets or pouring everything into a revocable trust.
The “elective estate” generally includes, among other things:
- The decedent’s probate estate (assets in the sole name of the deceased with no beneficiary).
- The decedent’s interest in pay-on-death and transfer-on-death accounts.
- Property held in a revocable living trust.
- The decedent’s fractional interest in jointly held accounts and property, including joint tenancy and tenancy by the entireties.
- The net cash surrender value of life insurance on the decedent’s life.
- Certain retirement accounts and pension benefits.
- Property the decedent transferred within one year of death without receiving adequate consideration (a clawback for deathbed gifting).
In short, most of the things people use to “avoid probate” still land inside the elective estate. A revocable trust does not put assets beyond a spouse’s reach. Neither does naming the kids as TOD beneficiaries on the brokerage account. This is the point that surprises adult children most: the plan can avoid probate completely and still owe the surviving spouse 30%.
What Is Generally Excluded
Not everything counts. Property given away long before death (outside the one-year window and not part of the listed transfers), certain irrevocable transfers, and property the spouse already received that is credited against the share can reduce or fall outside the calculation. The interplay is technical, and the credits under Fla. Stat. 732.2075 determine what the spouse must take into account before reaching for additional assets. This is not a do-it-yourself calculation.
How the Surviving Spouse Claims It
The right is not automatic. The spouse must affirmatively elect, and there is a deadline. Under Fla. Stat. 732.2135, the election generally must be filed within the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the window, and the right is usually lost.
The process looks like this in practice:
- The personal representative opens probate and serves the notice of administration.
- The surviving spouse (or their agent) files an election to take the elective share with the probate court.
- The court determines the value of the elective estate and the 30% amount.
- Assets the spouse already receives are credited first; the balance is satisfied from other property in a statutory order of contribution.
Because the election interacts with creditor claims, homestead rights, family allowance, and exempt property, the actual dollars a spouse nets can differ a great deal from a back-of-the-napkin 30% figure. A surviving spouse weighing whether to elect should run the numbers with counsel before the deadline, not after.
Planning Around the Elective Share
“Planning around” the elective share does not mean tricking a spouse out of their rights. Courts in Florida see through asset shuffling, and the clawback and trust-inclusion rules exist precisely to stop it. Legitimate planning means structuring an estate so the spouse is provided for in a way both spouses agree to, and so the rest of the plan, often for children from a prior marriage, survives intact.
1. The Elective Share Trust
Florida allows the 30% obligation to be satisfied, in part, by an elective share trust under Fla. Stat. 732.2025 and 732.2095. If the surviving spouse is the sole income beneficiary of a qualifying trust for life, a portion of the trust’s value counts toward satisfying the share. This is a common tool in second marriages: the spouse receives income and support for life, and whatever remains at the spouse’s death passes to the first marriage’s children. It honors the spouse and preserves the legacy.
2. A Marital Agreement (the Cleanest Tool)
The most reliable way to plan around the elective share is to waive it by agreement. Under Fla. Stat. 732.702, a spouse can waive the elective share (and homestead and other spousal rights) in a written prenuptial or postnuptial agreement. A prenuptial agreement signed before the wedding does not require financial disclosure to be valid; a postnuptial agreement does require fair and reasonable disclosure of assets. For an aging parent entering a later-in-life marriage, a well-drafted prenup is often the single most protective document available.
3. Lifetime Gifting and Irrevocable Structures
Gifts made well outside the one-year clawback window, and properly structured irrevocable transfers, can move assets out of the elective estate. This must be done carefully and for genuine planning reasons, not as a last-minute maneuver, and it should account for Medicaid look-back rules and gift tax considerations. Some families use retained-life-estate deeds and similar instruments to transfer a home while keeping the right to live in it. You can read more about how a tool like that works in our discussion of , which illustrates the concept even though the statutory details differ by state.
4. Provide Generously, Then Document Consent
Sometimes the simplest plan is the best one: leave the spouse at least their 30% (or more) so there is no reason to elect, and paper the rest of the plan clearly. When a spouse is comfortable, an election rarely happens, and litigation between a surviving spouse and a parent’s children, which is expensive and painful, is avoided.
Special Issues for Blended Families in Miami
Most elective share fights involve second marriages. Picture an 80-year-old father in Coral Gables who remarries, leaves the condo and accounts to his three adult children, and provides modestly for his new wife. If he did not get a waiver, his widow can elect 30% of an estate that may include the condo, his trust, and his accounts. The children’s inheritance shrinks, and the family relationship often fractures.
This is exactly the scenario adult children should raise with a parent early and gently. The fix is almost always cheaper before death than the litigation after it. A coordinated plan, often combining a marital agreement, an elective share trust, and clear titling, lets a parent care for a new spouse and protect the children at the same time. For households with assets in more than one state, coordination matters even more; trusts that work cleanly in New York, such as those described by the Morgan Legal team in their guide to a , must be reviewed against Florida’s homestead and elective share rules before anyone relies on them here.
Homestead Is a Separate Right
Do not confuse the elective share with Florida’s constitutional homestead protection. A surviving spouse has independent rights in the homestead, including, in many cases, a life estate or a half interest under Fla. Stat. 732.401. Homestead and elective share are calculated separately and can stack. Any plan that ignores one will fail. This is one of several reasons we steer families toward a comprehensive review rather than a single document. Our overview of Florida wills and the Florida probate process explains how these pieces fit together.
When to Bring in a Florida Estate Attorney
If your parent is remarried, has a much younger spouse, owns property in multiple states, or has expressed a wish to leave most of the estate to children from a prior relationship, the elective share should be addressed directly and in writing. The same is true if you are a surviving spouse who feels shortchanged by a will, because the six-month clock can run quickly during a stressful probate.
Our Florida estate planning attorneys handle elective share planning, marital agreements, elective share trusts, and the probate disputes that arise when no plan was in place. You can learn more about the full scope of services on our , or reach out through our contact page to schedule a consultation in Miami.
The elective share is not a loophole to fear or a weapon to wield. It is a rule of fairness with sharp edges. Handled early, it becomes one more thing your family planned for, instead of the thing that unraveled everything else.
Frequently Asked Questions
How much is the Florida elective share?
Under Fla. Stat. 732.2065, the surviving spouse may elect to take 30% of the deceased spouse’s elective estate. The elective estate is broad and includes the probate estate plus revocable trust assets, jointly held property, pay-on-death accounts, the cash surrender value of life insurance, and certain transfers made within one year of death.
Can a revocable living trust avoid the Florida elective share?
No. Property in a revocable living trust is counted in the elective estate under Fla. Stat. 732.2035. A revocable trust avoids probate but does not put assets beyond a surviving spouse’s 30% claim. The most reliable way to limit the elective share is a valid prenuptial or postnuptial waiver, or an elective share trust that benefits the spouse for life.
What is the deadline to claim the elective share in Florida?
Under Fla. Stat. 732.2135, the surviving spouse generally must file the election within the earlier of six months after service of the notice of administration or two years after the date of death. Missing the deadline usually forfeits the right, so a spouse who may want to elect should consult an attorney promptly.
Can a spouse waive the elective share before marriage?
Yes. Under Fla. Stat. 732.702, a spouse can waive the elective share in a written prenuptial or postnuptial agreement. A prenuptial agreement signed before marriage does not require financial disclosure to be enforceable, while a postnuptial agreement requires fair and reasonable disclosure of assets. A properly drafted waiver is often the cleanest way to plan around the elective share, especially in second marriages.
Is the elective share the same as Florida homestead rights?
No. They are separate protections that can stack. A surviving spouse has independent constitutional and statutory homestead rights under Fla. Stat. 732.401, which may include a life estate or a half interest in the homestead, in addition to the 30% elective share. A complete plan must account for both.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles .
