The Florida elective share is a surviving spouse’s legal right to claim 30% of a deceased spouse’s “elective estate,” even when the will or trust leaves them less. It is set out in Florida Statutes section 732.2065, and it is one of the few protections in Florida estate law that a person cannot simply write out of a will. For first-time planners and young families, understanding the elective share early is the difference between a plan that holds up and one that gets dismantled in probate court.
I’ve sat across the table from both sides of this issue: the surviving spouse who was shocked to learn the trust left them almost nothing, and the adult children of a first marriage who were equally shocked that a stepparent could claim nearly a third of everything. Both reactions are understandable. Both are usually preventable with planning that happens while everyone is alive and talking. This article walks through how the elective share actually works in Florida, what counts toward it, the deadlines that quietly control everything, and the legitimate ways to plan around it.
What Is the Florida Elective Share?
At its core, the elective share is an anti-disinheritance rule. Florida does not want a married person to be able to leave their husband or wife with nothing. So the law gives the surviving spouse a choice. They can accept whatever the estate plan gives them, or they can “elect against the estate” and instead take a statutory share equal to 30% of the elective estate.
That 30% figure is fixed by statute. It does not scale up or down based on the length of the marriage, whether there are children, or whose money built the estate. A spouse of eleven months has the same percentage right as a spouse of forty years. This surprises a lot of people, and it is the single most important thing young couples in second marriages need to absorb.
The right belongs to the surviving spouse alone. Nobody else can force the election, and the spouse can also choose not to make it, sometimes for tax or family reasons. The decision is personal, time-limited, and irreversible once the deadline passes.
The “Elective Estate” Is Much Bigger Than the Probate Estate
Here is where most people go wrong. They assume the elective share applies only to assets that pass through probate, so they think they can defeat it by titling everything jointly or dumping it into a revocable trust. They are mistaken. Florida deliberately built an “augmented” elective estate that reaches far past the probate file.
Under the statutes, the elective estate generally includes:
- The decedent’s probate estate (assets in the decedent’s sole name with no beneficiary designation).
- The decedent’s interest in protected homestead property.
- Property in a revocable (living) trust, which is otherwise nonprobate.
- Pay-on-death and transfer-on-death accounts, and other beneficiary-designated assets.
- The net cash surrender value of life insurance on the decedent’s life.
- Amounts in retirement accounts and certain pension and deferred-compensation plans.
- Property held in joint tenancy or tenancy by the entireties (the decedent’s fractional interest).
- Certain transfers the decedent made within one year of death, and transfers where the decedent kept the right to income or to revoke.
In other words, the elective estate is designed to capture nearly everything of value the decedent controlled at death, no matter how it was titled. The “I’ll just put it in a trust” strategy does not work in Florida, and clients who try it without legal advice often hand their families an expensive lawsuit.
What Generally Stays Out
Not everything is swept in. Property the surviving spouse already received from the decedent, irrevocable transfers made for full consideration, and certain assets covered by a valid waiver may be excluded. The calculation is genuinely technical, and the value of homestead and partial interests is computed under specific rules. This is one area where do-it-yourself math leads to bad surprises, so it is worth having an estate planning attorney run the numbers.
The Deadlines That Quietly Control Everything
The elective share is a use-it-or-lose-it right. Under Florida Statutes section 732.2135, the surviving spouse must file the election with the probate court by the earlier of:
- Six months after being served with the formal Notice of Administration in the probate case, or
- Two years after the date of the decedent’s death.
Those two clocks run independently, and whichever expires first wins. A spouse who is grieving and not paying attention to legal mail can lose a six-figure right by doing nothing. A judge can extend the deadline only for “good cause shown,” and an extension requires a court order, not a phone call. The spouse can withdraw an election within eight months of death and before the order of contribution, but that is the only easy exit.
If you are the surviving spouse, the practical takeaway is simple: when you receive anything that looks like a Notice of Administration, do not file it in a drawer. Talk to a probate attorney that week, not that quarter.
How Spouses Plan Around the Elective Share
There are legitimate, fully legal ways to limit or eliminate the elective share. They just have to be done correctly and, almost always, in advance.
1. A Valid Prenuptial or Postnuptial Agreement
The cleanest tool is a marital agreement. Florida Statutes section 732.702 allows a spouse to waive “all rights” in the other’s estate, and a properly drafted waiver of “all rights” sweeps in the elective share, the intestate share, homestead, exempt property, family allowance, and the preference to serve as personal representative.
The timing of the agreement matters a great deal. A waiver signed before marriage (a prenup) does not require either party to disclose the size of their estate. A waiver signed after marriage (a postnup) does require fair disclosure of each spouse’s estate. That single distinction sinks a lot of homemade postnuptial agreements, because the wealthier spouse never disclosed and the document later falls apart. For blended families and second marriages, a prenup that clearly waives spousal rights is often the centerpiece of the whole plan.
2. The Elective Share Trust
You don’t always have to hand the spouse a 30% slice of assets outright. Florida law lets you satisfy the elective share by giving the surviving spouse a qualifying interest in an “elective share trust,” where the spouse gets the income (and limited principal rights) for life while you control where the remainder goes. This is powerful for a parent who wants to provide for a current spouse but ultimately steer the property to children from a prior relationship. The trust has to meet statutory requirements to count, so the drafting is not casual.
3. Lifetime Giving and Coordinated Beneficiary Planning
Because the elective estate reaches back to certain transfers made within a year of death, last-minute gifting is not a reliable workaround. Genuine, earlier lifetime planning, coordinated with retirement and insurance beneficiary designations, can shape the result, but it has to be intentional and well-documented. Some of the more advanced strategies used in high-net-worth and long-term-care planning, like the , illustrate how irrevocable structures and timing interact with spousal and creditor rights. Florida’s rules differ, but the underlying principle (move assets early and intentionally, never on a deathbed) is the same everywhere.
4. Don’t Forget Florida Homestead
Homestead is its own minefield. Florida’s constitution restricts how a married person can devise homestead property. If a decedent leaves homestead to anyone other than the spouse while the spouse is alive, the spouse generally receives a life estate, with a statutory option to take an undivided one-half interest as a tenant in common instead. Homestead value is folded into the elective share calculation under specific rules. Homestead and the elective share are tangled together, so a plan that ignores one usually breaks the other.
Protecting the Surviving Spouse Instead
Not everyone is trying to limit a spouse’s rights. Plenty of young families want to maximize protection for the survivor, and the elective share is a floor, not a ceiling. If you intend to leave your spouse far more than 30%, the goal shifts to making sure those assets pass smoothly, are protected from creditors and remarriage risk, and don’t trigger unnecessary taxes or probate delay. A well-built revocable trust, properly coordinated beneficiary designations, and a clear homestead plan usually do more for a surviving spouse than the elective share ever would.
For families with a member who is disabled or who may eventually need government benefits, the planning gets more delicate, because an outright inheritance can disqualify them from assistance. Tools like a exist precisely to provide for a vulnerable beneficiary without destroying eligibility. Again, the Florida mechanics differ, but the lesson carries: protecting a spouse sometimes means giving them less directly and more in trust.
Common Mistakes I See Florida Couples Make
- Assuming a trust beats the elective share. It doesn’t. Revocable trust assets are inside the elective estate.
- Signing a postnup without disclosure. No fair disclosure after marriage usually means no enforceable waiver.
- Letting the deadline lapse. Six months from the Notice of Administration goes fast during grief.
- Ignoring homestead. The constitutional limits override your will, period.
- Copying a plan from another state. Florida’s elective share and homestead rules are genuinely unusual; out-of-state forms are dangerous here.
Where to Go From Here
The elective share is not something to fear, but it is something to plan for deliberately, ideally before there’s any conflict to litigate. Whether you want to protect a spouse generously or honor commitments to children from an earlier marriage, the right combination of a marital agreement, trust structure, beneficiary coordination, and a sound homestead plan can deliver the result you actually intend. Our handles these situations regularly, and the firm’s attorneys work across both spousal-protection and asset-protection matters.
If you’re just getting started, our overview of Florida wills and how they fit a young family is a good next read, and you can review how spousal rights play out after death in our guide to the Florida probate process. When you’re ready to map out a plan that holds up, reach out to schedule a consultation and bring your questions about second marriages, homestead, and beneficiary designations with you.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s “elective estate” under Florida Statutes section 732.2065. The percentage is fixed and does not change based on the length of the marriage or whether the couple had children.
Can a will or living trust override the elective share in Florida?
No. The elective share is an anti-disinheritance right that a will cannot defeat, and Florida’s elective estate specifically includes revocable trust assets, jointly held property, pay-on-death accounts, and more. The main lawful way to eliminate it is a valid waiver, usually a prenuptial or postnuptial agreement.
What is the deadline to claim the Florida elective share?
The surviving spouse must file the election by the earlier of six months after being served with the Notice of Administration or two years after the date of death, under section 732.2135. A judge can extend the deadline only for good cause and only by court order.
Can a spouse waive the elective share before marriage?
Yes. A prenuptial agreement can waive the elective share and other spousal rights under section 732.702, and a prenup signed before marriage does not require financial disclosure. A postnuptial waiver signed after marriage does require fair disclosure of each spouse’s estate to be enforceable.
Does the elective share include homestead property?
Yes, homestead value is factored into the elective share calculation under specific statutory rules, but Florida’s constitutional homestead restrictions also independently limit how a married person can leave a homestead. The two rules interact closely, so they should be planned together.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.