Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will says. It exists so a married person cannot fully disinherit a husband or wife. The right is set out in Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), and it reaches far beyond the probate estate into trusts, jointly held accounts, and certain lifetime transfers.
For the retirees and seasonal residents we work with along the coast, this is not academic. Snowbirds who establish Florida domicile, spouses in second or third marriages, and couples blending children from prior relationships all run into the elective share. Whether you want to protect a surviving spouse or plan around an inheritance you intend to direct elsewhere, you need to understand how the math actually works.
What the Florida Elective Share Is
The elective share is a floor, not a ceiling. When one spouse dies, the survivor may choose between (a) whatever the will or trust actually leaves them, and (b) 30% of the elective estate. The survivor picks whichever is larger. Florida adopted the 30% figure in its 1999 overhaul of the statute, replacing an older system that counted only probate assets and was easy to defeat with non-probate planning.
The point of the modern statute is to capture the marital wealth a deceased spouse controlled, no matter how it was titled. So a person who pours everything into a revocable living trust, names a child as beneficiary on every account, and leaves a hollow probate estate has not, in fact, cut their spouse out. Those assets get pulled back into the calculation.
The 30% Number and Where It Comes From
Section 732.2065 fixes the amount of the elective share at 30% of the elective estate. The elective estate itself is defined in section 732.2035, and it is broad. A surviving spouse who elects is entitled to that 30% in value; the assets used to satisfy it are then allocated under the contribution and abatement rules in sections 732.2075 through 732.2145.
What Counts in the Elective Estate
This is where people are surprised. Section 732.2035 sweeps in categories most clients assume are “safe” because they avoid probate. The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in property that passed by right of survivorship, including joint bank accounts and POD/TOD accounts, to the extent of the decedent’s contribution.
- The decedent’s revocable trusts and other revocable transfers.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Amounts in pension, retirement, and deferred compensation plans, with specific valuation rules.
- Certain property transferred within one year of death (subject to exclusions and the gift-tax annual-exclusion carve-out).
- Property transferred during the marriage where the decedent retained the right to income or possession, or the power to revoke or to name themselves as beneficiary.
What is generally excluded is just as important. Property the decedent received by gift or inheritance and kept separate, irrevocable transfers made before the marriage, and assets given away with the spouse’s written consent typically fall outside the elective estate. The statute also excludes certain protected homestead from the elective-share computation, because homestead carries its own separate spousal protections.
The Homestead Wrinkle Snowbirds Miss
Florida homestead is a parallel universe of spousal rights. Under section 732.401, when a married decedent owns homestead, the surviving spouse takes a life estate (or may elect a one-half tenancy in common with the descendants). That protection sits alongside the elective share. A seasonal resident who finally claims Florida as a primary residence to capture the homestead tax exemption also subjects that home to these spousal rules. If you bought the Palm Beach condo before this marriage and intended it for your kids, titling and timing matter enormously. Our overview of Florida probate walks through how homestead passes outside the probate estate.
Deadlines: The Election Is Easy to Lose
The right is powerful but unforgiving on timing. Under section 732.2135, the surviving spouse must file the election within the earlier of:
- Six months after service of the notice of administration on the spouse, or
- Two years after the decedent’s death.
The court may extend the deadline for good cause if a petition is filed before the period runs, but you cannot count on that. A grieving spouse who waits too long forfeits a claim that may be worth six or seven figures. If you are the survivor, talk to counsel within weeks of the death, not months.
How to Protect a Surviving Spouse
If your goal is to make sure your husband or wife is genuinely cared for, the elective share is a backstop, not a plan. Thirty percent of an elective estate can be far less than what a spouse needs to keep the home and maintain a lifestyle. Better tools include:
- An elective-share trust (QTIP-style marital trust). Section 732.2025 and the satisfaction rules let a properly structured marital trust count toward the elective share while keeping principal protected for the children of a prior marriage after the surviving spouse dies. This is the workhorse of blended-family planning.
- Outright provision plus homestead. Leaving the residence and liquid assets to the spouse, layered on the homestead life estate, often exceeds the 30% floor and avoids litigation entirely.
- Life insurance and beneficiary coordination. Because insurance and retirement accounts are counted, aligning beneficiary designations with the estate plan prevents the spouse from being forced to elect.
For clients with disabled or aging beneficiaries, preserving needs-based benefits matters too. We sometimes pair Florida planning with specialized vehicles handled by our affiliated New York team, such as a , where a beneficiary’s eligibility for Medicaid or other benefits is at stake.
How to Plan Around the Elective Share
The flip side is common in second marriages: you love your spouse but the bulk of your wealth is intended for children from an earlier marriage, or you simply want to control where assets land. Florida gives you several legitimate levers.
1. Prenuptial and Postnuptial Agreements
The cleanest path is a written waiver. Under section 732.702, a spouse may waive the elective share (and homestead and other spousal rights) entirely or in part, before or after marriage. A waiver signed before marriage needs no financial disclosure to be valid; a postnuptial waiver requires fair and reasonable disclosure of the other spouse’s assets. Get it in writing, signed, and witnessed properly, and it holds up.
2. Lifetime Gifts and Irrevocable Structures
Because the elective estate generally reaches back only one year for outright gifts, and excludes truly completed irrevocable transfers, advance planning can move assets outside the calculation. This has to be done carefully and well before any health crisis, because transfers with retained interests get pulled back in. Retained-interest planning, including a , is a useful illustration of how retained rights change the analysis. The same retained-interest principle that makes those transfers attractive for some goals is exactly what triggers inclusion under section 732.2035 if it is not structured correctly.
3. Pre-Marital Separate Property
Assets owned outright before the marriage and irrevocably transferred before the marriage are generally outside the elective estate. Keeping inherited or pre-marital property segregated, never commingling it with marital accounts, preserves that character. Sloppy titling is what destroys these distinctions.
A Word on Domicile for Snowbirds
The elective share applies to the estate of a person domiciled in Florida at death. If you split the year between a northern state and Florida, your domicile determines which state’s spousal-protection regime governs. Some northern states use an “augmented estate” model with different percentages and lookback rules. Declaring Florida domicile, registering to vote, getting a Florida license, and filing the homestead exemption all point toward Florida law applying. Couples who relocate should revisit any out-of-state will, trust, or prenup so it still does what they think it does under Florida statutes. Our Florida team’s estate planning practice regularly handles these cross-border transitions, and a basic refresh of your will and core documents is the place to start.
Common Mistakes We See
- Assuming a revocable living trust defeats the elective share. It does not.
- Relying on POD/TOD beneficiary forms to disinherit a spouse. They are counted.
- Letting a prenup go stale or unsigned, or skipping disclosure on a postnup.
- Moving to Florida without updating an out-of-state plan, then discovering Florida’s rules differ.
- Missing the election deadline after a spouse dies.
The elective share rewards people who plan deliberately and punishes those who improvise. Whether you want to guarantee your spouse’s security or steer your estate toward children and grandchildren, the right structure makes the difference between an enforceable plan and an expensive probate fight. If you are weighing your options on the Palm Beach coast, reach out through our contact page for a focused review of how these rules apply to your family.
Frequently Asked Questions
What percentage does a surviving spouse get under Florida's elective share?
A surviving spouse may claim 30% of the deceased spouse’s elective estate under Florida Statutes section 732.2065. The survivor chooses between this 30% and whatever the will or trust actually leaves, taking whichever is larger.
Can a revocable living trust defeat the Florida elective share?
No. Assets in a revocable living trust are counted in the elective estate under section 732.2035, along with POD/TOD accounts, joint property to the extent of the decedent’s contribution, life insurance cash value, and certain transfers within one year of death. A trust does not disinherit a spouse.
How long does a surviving spouse have to file the elective share in Florida?
Under section 732.2135, the election must be filed within the earlier of six months after service of the notice of administration or two years after death. Courts can extend the deadline for good cause only if a petition is filed before it expires.
Can a spouse waive the Florida elective share?
Yes. Under section 732.702, a spouse can waive the elective share, homestead, and other spousal rights through a prenuptial or postnuptial agreement. A pre-marriage waiver needs no financial disclosure; a postnuptial waiver requires fair and reasonable disclosure of assets.
Does the elective share apply to snowbirds who only live in Florida part of the year?
It applies if the deceased was domiciled in Florida at death. Domicile, not the number of months spent in the state, controls. Snowbirds who establish Florida domicile should update any out-of-state will, trust, or prenup so it functions correctly under Florida law.
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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 .