Florida law provides that you are entitled to a minimum 30% share of your spouse’s assets after he dies, regardless of what his will says. This is called the elective share. The elective share prevents an individual from disinheriting his spouse. In order for you to receive an elective share, you have to file an election with a probate court after your spouse’s death. Here is what you need to know about this important law:

Why an Elective Share

The elective share is intended to protect a surviving spouse from impoverishment. The underlying assumption is that a marriage is an economic partnership. Regardless of how property is titled, a portion of the property that a spouse holds at death should inure to his widow.

What Property is in the Elective Estate

The decedent’s elective estate includes not only the probate estate, but many additional assets as well. In Florida, the elective estate includes:

Property that passes to the surviving spouse upon the decedent’s death
The decedent’s probate estate
The decedent’s interest in property that passes by right of survivorship at death (such as in joint tenancy)
Property held in revocable trusts
Certain property transfers the decedent made up to one year prior to his death
Death benefits paid by retirement plans
Joint bank accounts and “transfer on death” accounts
The decedent’s interest in the cash surrender value of life insurance policies on the decedent’s life

Satisfaction of the Elective Share

Under Florida law, a surviving spouse who takes an elective share is entitled to a percentage of the value of the elective estate. In order to satisfy the surviving spouse’s elective share, the assets in the elective estate are distributed in the following order:

Assets that pass to or for the benefit of the surviving spouse
Assets from the remainder of the decedent’s probate estate and any revocable trusts
Remaining assets in the elective estate that pass to other recipients
All other assets in the elective estate.

Deadline for Claiming an Elective Share

A surviving spouse who wishes to claim an elective share must file the election before the first of these deadlines:

-Six months after service of notice of probate administration, and

- Two years after decedent’s death.

Defenses to the Elective Share

A surviving spouse will generally be entitled to the elective share unless an interested party successfully proves that she:

-procured the marriage by fraud, duress, or undue influence, or

-killed the decedent

The Elective Share Can be Waived

An individual can waive her rights to receive an elective share in her spouse’s estate by executing a valid pre-nuptial or post-nuptial agreement.

Award of Attorney Fees and Costs in Elective Share Proceedings

A spouse who files an elective share action can recover fees and costs from the decedent’s estate under certain circumstances. Florida Statute Section 732.2151 provides that the court may award prevailing party fees and costs when there is an objection or dispute over a surviving spouse’s entitlement to or the amount of the elective share.

The Elective Share: What Your Spouse Inherits