Understanding How Elective Shares in Florida Work

Fri Mar 29, 2019 | Will Challenges |

One of the cardinal rules of estate law is that wills should be administered according to the wishes of the testator. This can lead to a number of less-than-ideal outcomes for the testator’s heirs, especially those who end up receiving nothing or only very small amounts from his or her estate. While the terms of a will generally control the distribution of the testator’s estate, there is one notable exception in the case of surviving spouses. A testator who is married at the time of his or her death cannot disinherit a surviving spouse, as surviving spouses are legally entitled to take a certain percentage of the estate. This is known as an elective share.

How Do Elective Shares Work?

In very simple terms, an elective share is a portion of the decedent’s estate that his or her surviving spouse is entitled to take regardless of the terms of the decedent’s will. The purpose of granting surviving spouses this right is to prevent them from falling into poverty upon the death of the decedent. Surviving spouses invoke their right to take an elective share most often when the decedent attempts to disinherit them or leaves them less than they would receive if they took an elective share. In Florida, the elective share a surviving spouse is entitled to is 30% of the decedent’s elective estate.

What is the “Elective Estate”?

The decedent’s “elective estate” is not the same as his or her probate estate. Rather, it is the decedent’s probate estate plus additional assets outside of the probate estate. Each state defines the elective state differently, but in Florida, a decedent’s elective estate includes:

  • The decedent’s probate estate
  • The decedent’s interest in property passing by right of survivorship at death (such as in joint tenancy)
  • Property held in any revocable trusts
  • Certain property transfers the decedent made up to one year prior to his or her death
  • Death benefits paid under retirement plans
  • Joint bank accounts and “pay on death” accounts
  • The decedent’s interest in the cash surrender value of life insurance policies on the decedent’s life
  • Property passing directly to the surviving spouse

Once the total value of the decedent’s elective estate is determined, it is then reduced by certain outstanding liabilities of the decedent at the time of his or her death, and 30% of the remaining amount is distributed to the surviving spouse.

Satisfaction of the Elective Share

Under Florida law, a surviving spouse who takes an elective share is entitled only to a percentage of the value of the elective estate rather than a dollar amount or any specific item of property. In order to satisfy the surviving spouse’s elective share, the assets of the elective state are distributed in the following order:

  1. Assets that pass to or for the benefit of the surviving spouse
  2. Assets from the remainder of the decedent’s probate estate and any revocable trusts
  3. Remaining assets in the elective estate that pass to other recipients
  4. All other assets in the elective estate.

Contact a Boca Raton Probate Litigation Attorney

Elective share, and the calculation thereof, can be an enormously complex area of estate law, and this post merely scratches the surface. For more information about a surviving spouse’s right to take an elective share, contact a Boca Raton probate litigation attorney at the Ellis Law Group by contacting us online or calling 561-910-7500.