What is the Elective Share in Florida Probate?

Imagine finding out that when your husband or wife died, they left you with less than expected – or worse, nothing at all. Pretty scary thought, right?

Here’s the good news: you’re protected under Florida law. There’s something called the “elective share” that makes sure surviving spouses are covered, no matter what a will might say.

It’s one of the most powerful rights you have as a surviving spouse in Florida, but most people don’t even know it exists until they need it.

Florida’s Elective Share Law

The elective share is Florida’s way of preventing a spouse from being completely disinherited.

Under Florida law, a surviving spouse has the right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will says.

Think of it as a safety net – even if your spouse left you out of their will entirely, you still have the right to claim this portion of their estate. It’s Florida’s way of ensuring surviving spouses are protected financially after their partner’s death.

What’s Included in the Elective Estate?

The elective estate includes more than just what goes through probate. In fact, it encompasses:

• All probate assets
• Pay-on-death accounts
• Transfer-on-death accounts
• Joint bank accounts
• Property held in joint tenancy
• Life insurance policies
• Retirement accounts
• Revocable trusts
• Property the deceased transferred within one year of death
• Property transferred while retaining the right to income or possession

This broad definition helps prevent someone from trying to avoid the elective share by moving assets outside of probate.

How to Claim the Elective Share in Florida

If you’re a surviving spouse considering claiming your elective share, here’s what you need to know about the process:

1. Time Limits: You must file your election within 6 months of receiving notice of the administration of the estate or within 2 years of your spouse’s death, whichever comes first.
2. Filing Requirements: The election must be filed with the court handling the probate case and served in the manner provided for service of formal notice on the personal representative of the estate.
3. Legal Assistance: Because calculating the elective share can be complex, it’s usually wise to work with an experienced probate attorney who can help determine what assets are included and ensure your rights are protected.

When the Elective Share Doesn’t Apply

There are some situations where you can’t claim an elective share:

• If you signed a valid prenuptial or postnuptial agreement waiving your right to an elective share
• If you and your spouse were divorced or your marriage was annulled at the time of death
• If you missed the deadline to file for your elective share – timing is crucial here, and if you wait too long, you could lose your rights entirely

This is why it’s so important to act quickly and get good legal advice if you think you might need to claim your elective share. The law protects surviving spouses, but only if you take the right steps at the right time.

Special Considerations for the Elective Share

The elective share can significantly impact estate planning strategies. When creating an estate plan, it’s important to:

• Consider how the elective share might affect intended distributions to other beneficiaries
• Plan for the possibility that your spouse might claim their elective share
• Discuss alternatives with your estate planning attorney if you want to provide differently for your spouse

Additionally, the elective share can have important tax implications. The portion received as an elective share qualifies for the marital deduction for estate tax purposes.

This can help reduce the overall estate tax burden. However, it might affect other tax planning strategies you’ve put in place.

Calculating the Elective Share in Florida

Determining the exact amount of the elective share can be complex because it involves:

1. Identifying all assets that are part of the elective estate
2. Determining the value of these assets
3. Calculating 30% of the total
4. Subtracting any assets already passing to the surviving spouse
5. Considering any outstanding debts or claims against the estate

This isn’t just simple math – it requires a thorough understanding of Florida probate law to ensure all assets are properly included and valued in the calculation.

Protecting Your Rights as a Surviving Spouse

If you’re a surviving spouse in Florida, it’s important to understand your rights regarding the elective share. Here are some key steps to protect yourself:

1. Act Quickly: Remember the time limits for filing your election
2. Gather Information: Collect documentation about all potential assets in the elective estate
3. Seek Legal Counsel: Work with an experienced probate attorney who can help protect your rights
4. Consider Negotiations: Sometimes, beneficiaries and the surviving spouse can reach a mutually beneficial agreement without formal proceedings

Get Help with Elective Share Claims. We’re Here For You

Elective share claims can feel overwhelming, especially when you’re already dealing with the loss of your spouse. At Vollrath Law, we help people like you navigate these waters every day. Our probate attorneys in Oviedo, FL can explain your rights in plain English and help you make informed decisions about your next steps.

Whether you’re doing some estate planning and want to make sure your spouse is protected or you’re a surviving spouse trying to understand your rights, we’re here to help. Give us a call at Vollrath Law. Let’s talk about your situation and figure out the best path forward together.