Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

Florida’s elective share is a statutory right that lets a surviving spouse claim 30 percent of the deceased spouse’s “elective estate,” no matter what the will or trust actually says. Under Florida Statutes § 732.2065, that 30 percent is measured against a broad, augmented pool of assets, not just whatever happened to be in the probate file. In practice, it means you cannot fully disinherit a husband or wife in Florida without their written consent, and any plan that tries to ignore that right tends to fall apart in front of a probate judge.

For the retirees and seasonal residents we work with in Palm Beach County, this is not an abstract rule. It is the single thing that most often blows up a second-marriage estate plan, a “his money and her money” arrangement, or a revocable trust that quietly left the spouse out. Below is how the elective share really works, what counts toward it, the deadlines that matter, and the legitimate ways to plan around it before it becomes a fight.

What the Florida elective share actually guarantees a surviving spouse

The elective share is Florida’s answer to a simple problem: a married person should not be able to leave their spouse with nothing. Many states use the older “dower and curtesy” or a sliding scale tied to length of marriage. Florida went a different direction. It set a flat 30 percent and built an unusually wide net of assets to apply it to.

The right belongs to the surviving spouse alone. Children, grandchildren, and other heirs have no elective share. And it is an option, not an automatic payout. The surviving spouse has to affirmatively elect it, in writing, filed with the court, within the statutory window. If they do nothing, they take whatever the will or trust gave them, even if that is far less than 30 percent.

One point that surprises a lot of snowbirds: domicile matters. The elective share is a creature of Florida law and generally applies when the decedent was a Florida resident at death. If you split the year between, say, New York and West Palm Beach, where you are legally domiciled can change which state’s spousal-protection rules govern your estate. That is one more reason a part-time Floridian’s plan should be reviewed by counsel in both states rather than assumed to “just work.”

The “elective estate” is much bigger than the probate estate

Here is where most people guess wrong. They assume 30 percent applies only to assets that pass under the will. It does not. The elective estate is an augmented estate, and Florida Statutes § 732.2035 and § 732.2075 sweep in a long list of non-probate transfers so that a spouse cannot be cheated through clever titling.

The elective estate generally includes:

• The decedent’s probate estate, the assets that pass under the will or by intestacy.
• The decedent’s revocable living trust, including assets the decedent could have reached or revoked during life.
• Pay-on-death and transfer-on-death accounts, in-trust-for (“Totten trust”) accounts, and similar beneficiary-designation accounts.
• Property held in joint tenancy with right of survivorship and tenancy by the entireties (the decedent’s fractional interest).
• The cash surrender value of life insurance the decedent owned on their own life immediately before death.
• The decedent’s interest in retirement and pension benefits and certain annuities.
• Certain transfers made within one year of death and property over which the decedent retained control or a retained life interest.

That last category catches people. A common DIY move is to retitle the family home or brokerage account, or to add a retained interest, hoping to shrink the estate. Florida’s statute anticipates exactly that maneuver. This is the same reason structured tools like a have to be done with the spousal-rights rules in view, because a retained interest can still be pulled back into the calculation.

How the 30 percent is satisfied and who pays it

Once a spouse elects, the court does not simply hand over a check. It runs an accounting. The value of property the surviving spouse already received from the decedent, outright bequests, the spouse’s interest in joint property, life insurance proceeds, retirement benefits, even the value of certain trusts created for the spouse, gets credited against the 30 percent. If that credited value already meets or exceeds the elective share, the spouse gets nothing more. If there is a shortfall, the statute sets an order of contribution, and other beneficiaries’ shares are reduced to make up the difference.

So the elective share is best thought of as a floor, not an extra bonus on top of everything else. The math is detailed, and the valuations (especially of partial interests, insurance, and trusts) are where these cases get litigated. It is worth having the calculation modeled before anyone makes an election, because a spouse who is already at or above 30 percent gains nothing by electing and may waive other advantages.

Deadlines: the elective share is easy to lose by waiting

The right is powerful but time-limited. Under Florida Statutes § 732.2135, the election must generally be filed by the earlier of:

1. Six months after the surviving spouse (or their agent or guardian) is served with the notice of administration, or
2. Two years after the date of the decedent’s death.

A spouse can petition the court for an extension for good cause, but you do not want to rely on that. An election can also be withdrawn within a limited window before the court’s order of contribution. Miss the deadline without an extension and the right is simply gone, regardless of how unfair the underlying plan was. For a grieving spouse, six months disappears quickly, which is why this is one of the first things we calendar when we open a probate.

Homestead is a separate protection, and it stacks

The elective share is not the only shield Florida gives a surviving spouse. The homestead protections in the Florida Constitution and Chapter 732 are separate and, in many ways, even harder to override. If a decedent is survived by a spouse, the constitution sharply limits who can inherit the homestead and how it can be devised. A spouse generally receives either a life estate with a remainder to the decedent’s descendants, or, by timely election, an undivided one-half tenant-in-common interest.

Because homestead and elective share run on parallel tracks, a plan that satisfies one can still trip over the other. For our seasonal residents, the threshold question is often whether the West Palm Beach property even qualifies as Florida homestead, which turns on residency and intent, not just where you spend the winter. Sorting out homestead status early prevents a nasty surprise during administration. You can read more about how the home fits into a broader plan on our wills and estate planning overview.

Planning around the elective share, the right way

“Planning around” the elective share does not mean tricking your spouse. The schemes that try to hide or strip assets almost always fail because of the augmented-estate rules above. What works is consent and design.

1. A valid waiver in a prenuptial or postnuptial agreement

Under Florida Statutes § 732.702, a spouse can waive the elective share, intestate share, homestead, exempt property, and family allowance, in whole or in part, before or after marriage. The waiver must be in a written agreement signed in the presence of two subscribing witnesses. There is an important wrinkle on disclosure: if the agreement is signed after marriage, each spouse must make a fair disclosure of their estate; if it is signed before marriage, no financial disclosure is required for validity. A clean, well-drafted prenup is the most reliable way to honor a “keep my assets for my children” wish in a second marriage.

2. Give the spouse a satisfying interest by design

Because outright gifts and qualifying trust interests are credited against the 30 percent, you can structure a plan that gives the surviving spouse enough, in a controlled form, so an election gains them nothing. A properly drafted “elective share trust” that pays the spouse income for life, with the remainder going to your children, can satisfy the floor while still protecting your bloodline. This is exactly the kind of trade-off second-marriage couples wrestle with, and it is solvable with the right trust language.

3. Coordinate, don’t isolate, the non-probate assets

Since revocable trusts, POD accounts, joint property, and insurance all count, the planning has to be holistic. Tightening up a will while leaving beneficiary designations contradicting it is how plans unravel. For older or special-needs beneficiaries, specialized vehicles like a may also be part of a coordinated strategy, particularly where preserving means-tested benefits matters alongside spousal rights.

Every one of these tools has to be matched to your residency, your family structure, and your goals. Our Florida team handles exactly this work; you can see the scope on the page, and when you are ready to map your own situation, our West Palm Beach office can walk you through it.

Common scenarios we see in Palm Beach County

• The second marriage with separate children. One spouse wants assets to go to children from a prior marriage; the survivor still has a 30 percent claim unless waived. A prenup plus an elective-share trust usually threads the needle.
• The “I put everything in a trust, so the spouse can’t touch it” plan. Revocable trust assets are squarely inside the elective estate. This plan does not work as intended.
• The snowbird who never updated their domicile. The home up north and the condo in Florida pull in different directions, and homestead status may be unclear. Residency needs to be settled, on paper, well before death.
• The deathbed transfers. Last-minute retitling or gifts inside the one-year window get pulled back in. Timing-based “fixes” rarely survive scrutiny.

The bottom line

Florida’s elective share gives a surviving spouse a hard floor of 30 percent of a broadly defined estate, with strict deadlines and homestead protections layered on top. You cannot wish it away or hide assets from it, but you can plan honestly around it through valid waivers and well-designed trusts. Whether you are trying to protect a spouse or balance a spouse against children from an earlier marriage, the worst approach is to assume your will controls. It often does not. A short planning conversation now is far cheaper than the probate litigation that follows when the elective share is discovered too late. Explore how the home and probate fit together on our Florida probate page, then book a review.

Frequently Asked Questions

How much is the elective share in Florida?

The elective share is 30 percent of the deceased spouse’s elective (augmented) estate under Florida Statutes § 732.2065. That pool includes far more than the probate estate, sweeping in revocable trust assets, POD/TOD accounts, joint property, life insurance cash value, and certain pre-death transfers. The 30 percent is a floor, and assets the surviving spouse already received are credited against it.

Can a spouse be completely disinherited in Florida?

Not without their written consent. A surviving spouse can claim the 30 percent elective share regardless of what the will or trust says, plus separate homestead, exempt property, and family allowance rights. The only reliable way to limit or eliminate these is a valid waiver signed in a prenuptial or postnuptial agreement under § 732.702, executed with two witnesses and (for postnuptial agreements) fair financial disclosure.

What is the deadline to claim the elective share in Florida?

Under Florida Statutes § 732.2135, the election must be filed by the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s death. A court may grant an extension for good cause, but the right is otherwise lost if the deadline passes.

Does putting assets in a revocable trust avoid the elective share?

No. Revocable living trust assets are expressly included in the elective estate. Florida’s augmented-estate rules are designed to catch exactly this strategy, along with joint accounts, beneficiary-designation accounts, and certain transfers made within a year of death, so non-probate titling does not shield assets from a spouse’s claim.

How is the elective share different from Florida homestead rights?

They are separate protections that can stack. The elective share is the 30 percent claim on the broader estate; homestead rights are constitutional protections governing how the primary residence can pass when there is a surviving spouse, often as a life estate or a one-half tenant-in-common interest by election. A plan can satisfy one and still violate the other, so both must be addressed together, especially for part-time Florida residents whose homestead status may be unclear.