Spousal Rights and Elective Shares

Our Boca Raton Estate and Probate Litigation Attorneys Assist with Conflicts Involving Spousal Rights 

Florida law provides that a spouse cannot be disinherited by will.  The only way a surviving spouse can be disinherited is through the execution of a valid premarital or postmarital agreement.  In the absence of a nuptial agreement, a surviving spouse is, at a minimum, entitled to an elective share. The rules are not clear cut, however, and if you are a spouse trying to collect what you believe is yours by law, contact the attorneys at our law firm. 

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 in Florida 

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.

What is a Pretermitted Spouse?

In some cases, a decedent makes his will before marriage and does not thereafter execute a new will naming his or her spouse as a beneficiary.  When the surviving spouse married the decedent after the will was made and the spouse is not named in the will, the spouse may be pretermitted. A pretermitted spouse is entitled to a share of the estate equal to that which the spouse would have received if the decedent died without a will.  Depending on the facts and circumstances, this would either be half or all of the probate estate. Unlike an elective share, the inheritance to a pretermitted spouse is made up exclusively of probate assets.

The Rights of a Surviving Spouse

In addition to elective share, Florida law may confer other rights on surviving spouses.  One such right is the right to exempt property. As the name suggests, exempt property is exempt from the claims of creditors and is distributed to a spouse in addition to any other bequests.  That is, exempt property does not count towards satisfaction of an elective share or bequests made in a will. This right must be timely exercised, or it is waived. The deadline to claim exempt property will depend on the attendant facts and circumstances.

A surviving spouse may also be able to claim family allowance, which provides for the distribution of probate assets in an amount not to exceed $18,000.00 to allow a surviving spouse to pay his or her personal expenses while administration is ongoing.

The Boca Raton estate and probate litigation lawyers at Ellis Law Group can assist surviving spouses in all probate matters, whether or not litigation is involved, in order to protect their elective share, pretermitted spousal share, and other rights. Contact us today with any questions you may have.. 

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