Florida’s elective share law is a powerful legal safeguard that ensures surviving spouses are not unintentionally disinherited. Even when a will or trust says otherwise, the law provides a minimum portion of the deceased spouse’s estate to the surviving spouse. Whether you’re planning your estate or navigating the probate process after a loved one’s death, understanding this law is crucial.
At The Law Offices of Jeffrey A. Herzog, we help individuals and families in Palm Harbor and Trinity, Florida, protect their interests and understand their legal rights—especially when it comes to complex estate matters like Florida’s elective share law.
What Is Florida’s Elective Share?
The elective share is a statutory right that allows a surviving spouse to claim a percentage of the deceased spouse’s estate—even if the will, trust, or other estate documents leave the spouse little or nothing.
Key Points About the Elective Share:
- Amount: The elective share is 30% of the elective estate.
- Who Can Claim It: Only the surviving spouse.
- Deadline to File: Typically within six months of receiving notice of the probate proceeding (but not more than two years after death).
What Is Included in the Elective Estate?
The elective estate is broader than just probate assets. It can include:
- Property held in revocable trusts
- Jointly held property
- Payable-on-death accounts
- Life insurance policies owned by the decedent
- Transfers made shortly before death
This expansive definition is designed to prevent someone from avoiding the elective share by simply moving assets out of their name before death.
When Might a Spouse Choose the Elective Share?
A surviving spouse might opt for the elective share when:
- The will leaves them less than 30% of the elective estate
- They were disinherited entirely
- The deceased tried to sidestep spousal inheritance through trusts or gifts
Choosing the elective share essentially overrides the estate plan to ensure the spouse receives their legal minimum.
Can the Elective Share Be Waived?
Yes. A spouse can waive the right to the elective share, but it must be done voluntarily and in writing—usually through a prenuptial or postnuptial agreement. This is common in second marriages or when there is a desire to preserve assets for children from a prior relationship.
For a waiver to be valid under Florida law:
- It must be in writing.
- Both spouses must sign it.
- Both parties must make fair and reasonable financial disclosures (unless explicitly waived).
Legal Challenges and Pitfalls
Elective share disputes can arise in several situations:
- Lack of capacity: If the deceased spouse lacked the mental capacity when creating the estate plan or waiver, it may be challenged.
- Fraud or duress: A waiver may be invalid if it was signed under pressure or deception.
- Improper notice: If a spouse isn’t properly notified of probate proceedings, deadlines may be extended.
These challenges can significantly delay the estate administration process, making legal guidance essential.
How It Affects Your Estate Planning
For individuals crafting an estate plan in Palm Harbor or Trinity, Florida, it’s important to plan around the elective share. Failing to do so could lead to litigation or unintended distributions. This is particularly critical in blended families or when substantial assets are placed in trusts.
If you want to leave less than 30% to your spouse (or nothing at all), you must secure a valid waiver. If you want to protect assets for children from a previous relationship, it may require careful structuring of your estate with legal assistance.
Why Local Experience Matters
Florida’s elective share laws are intricate, and applying them correctly requires a thorough understanding of both probate procedures and estate planning techniques. A local estate planning attorney can help you:
- Assess your elective estate
- Ensure proper notice is given
- File timely elections
- Avoid or resolve legal disputes
Secure Your Legacy with Confidence
If you’re planning your estate or navigating probate in Palm Harbor or Trinity, The Law Offices of Jeffrey A. Herzog can help ensure your rights—and your family’s future—are protected. With decades of experience in Florida estate law, we provide personalized strategies tailored to your unique needs. Contact us today to schedule a consultation and take control of your estate plan.