Under Florida law, the general rule prohibits individuals from completely disinheriting their spouses. Completely removing the rights of a deceased person’s spouse may result in severe consequences. In this article, you will find out the essentials of elective shares during Florida probate.
Florida Elective Share – Explaining the Concept
Florida Statutes §732.201 provides that “the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.”
The same statute adds that “the election does not reduce what the spouse receives if the election were not made, and the spouse is not treated as having predeceased the decedent.”
Florida Statutes §732.2065 specifies that “the elective share is an amount equal to 30 percent of the elective estate.” The statute of limitations to claim the elective share is short. The surviving spouse must for election on or before the earlier of the date that is:
- Six months after the date of service of a copy of the notice administration, or
- The date that is two years after the date of the decedent’s death
Florida Elective Share vs. Probate Assets – Taking a Closer Look
As described by Florida Statutes §732.2075(1), “unless otherwise provided in the decedent’s will or, in the absence of a provision in the decedent’s will, in a trust referred to in the decedent’s will, the following are applied first to satisfy the elective share:
- Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests
- To the extent paid to or for the benefit of the surviving spouse, amounts payable under any plan or arrangement described in Fla. Stat. §732.2035(8)
- To the extent paid to or for the benefit of the surviving spouse, the decedent’s one-half of any property described in Fla. Stat. §732.2045(1)(f)
- To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of insurance on the decedent’s life if, at the time of decedent’s death, the policy was owned by any person other than the surviving spouse
- Property held for the benefit of the surviving spouse in a qualifying special needs trust
- Property interests that would have satisfied the elective share under any preceding paragraph of this subsection but were disclaimed”
Please note that the surviving spouse’s elective share in the deceased spouse’s estate is not only comprised of probate assets. Probate assets are those held solely in the decedent’s name at the time of death, generally distributed through a will.
The elective share applies to every asset owned by the decedent at the time of death, including assets held in a trust or other different legal tools. Florida law designates it as the decedent’s “augmented estate.”
Until 2001, Florida law limited the surviving spouse’s elective share to the decedent’s probate assets. Not quite long ago, the state legislature updated this provision, as many residents were setting up different legal tools to disinherit a surviving spouse.