Estate planning in Florida involves various legal considerations, and one important factor to account for is the state’s elective share law. This law is designed to protect surviving spouses from being disinherited, ensuring they receive a portion of their deceased spouse’s estate. Understanding how Florida’s elective share law works and its impact on your estate plan is crucial to avoiding unintended legal disputes and ensuring your wishes are carried out. The Law Offices of Jeffrey A. Herzog can help you navigate these legal complexities to develop a plan that aligns with your goals.
What Is Florida’s Elective Share Law?
Florida’s elective share law allows a surviving spouse to claim a percentage of their deceased spouse’s estate, regardless of what the will states. The law is intended to prevent individuals from disinheriting their spouses or leaving them with an insufficient inheritance.
Under current Florida law, the elective share is set at 30% of the elective estate. The elective estate includes more than just probate assets—it also encompasses certain non-probate assets, such as revocable trusts, jointly owned property, and retirement accounts, among others. This means that even if a person attempts to move their assets outside of probate, the surviving spouse may still have a legal claim to a portion of them.
The law applies even if the surviving spouse was estranged or separated from the deceased at the time of death as long as they were legally married. This can sometimes result in complex legal battles between the surviving spouse and other heirs.
How the Elective Share Affects Estate Planning
If an estate plan does not provide at least 30% of the elective estate to the surviving spouse, the spouse has the legal right to file an election and claim their share. This can have significant consequences for asset distribution, especially if the deceased had children from a previous marriage, intended to leave more assets to other heirs, or structured their estate in a specific way for tax or legacy purposes.
Impact on Wills and Trusts
Even if a will or trust attempts to disinherit a spouse or leave them less than 30%, the elective share law overrides those provisions. This means that estate planning is necessary to avoid disputes and unintended consequences. A person cannot use a trust to bypass the elective share requirement unless the trust is structured to benefit the surviving spouse.
Assets Included in the Elective Estate
The elective share applies to a broad range of assets beyond just probate property. Some assets that count toward the elective estate include:
- Probate assets (assets passing under a will)
- Jointly owned property
- Revocable trusts
- Life insurance proceeds payable to the estate
- Retirement accounts such as IRAs and 401(k)s
- Transfer-on-death (TOD) and payable-on-death (POD) accounts
- Certain gifts made shortly before death to prevent them from being part of the estate
Waiving the Elective Share
In some cases, spouses may agree to waive their right to the elective share through a prenuptial or postnuptial agreement. This can be beneficial for those entering second marriages or those who wish to distribute their assets differently. A legally binding waiver must be properly executed to be enforceable in Florida courts. If a spouse waives their elective share rights, it is essential to ensure that the waiver is properly documented and signed in accordance with state laws.
Avoiding Legal Disputes Over the Elective Share
Estate disputes can arise when a surviving spouse exercises their elective share rights, particularly when other heirs were expecting a different distribution of assets. To minimize conflict and ensure clarity:
- Work with an estate planning attorney to structure your assets appropriately.
- Consider incorporating a marital trust or other estate planning tools to provide for a surviving spouse while preserving the intent of your estate plan.
- Discuss estate planning decisions with family members to manage expectations.
- Keep detailed records of asset transfers and legal agreements to ensure clarity in a dispute.
How to Ensure Compliance with the Elective Share Law
For individuals and families in Palm Harbor, Florida, estate planning should consider the elective share law to prevent unintended legal complications. Steps to ensure compliance include:
- Reviewing all estate documents, including wills, trusts, and beneficiary designations.
- Evaluating asset distribution strategies to meet elective share requirements.
- Drafting a prenuptial or postnuptial agreement if the elective share is to be waived.
- Seeking legal guidance to navigate the complexities of Florida’s estate laws.
- Understanding the time limits and procedures for making an elective share claim, as missing these deadlines can affect a spouse’s rights.
Additionally, individuals should consider updating their estate plans regularly, especially after major life changes such as marriage, divorce, or the birth of children. Proper planning ensures that both the wishes of the estate owner and the rights of the surviving spouse are balanced fairly.
Get Professional Estate Planning Assistance
Understanding Florida’s elective share law is essential for effective estate planning. Whether you are drafting a new estate plan or revising an existing one, professional legal guidance can help you make informed decisions. The Law Offices of Jeffrey A. Herzog in Palm Harbor is here to assist you in crafting a plan that aligns with your wishes while complying with Florida law. Contact us today to ensure your estate is protected and your loved ones are provided for. Taking proactive steps now can help prevent legal disputes in the future and ensure that your estate is managed in accordance with your intentions.