Breaking Down the Florida Elective Share Law

Florida law stipulates that a decedent can’t completely cut out a spouse from an inheritance, with the only exception being that the surviving spouse agrees to this via documented postnuptial or prenuptial consent.

Even if the spouse is left out of the will, state guidelines dictate that he or she is entitled to a fraction of the elective estate courtesy of the Florida Elective Share law.

This law gives the deceased’s partner the power to choose between the elective share portion, which stands at 30% of the elective estate, and the will stipulations depending on which one is greater. 

History of the Florida Elective Share law

The elective share policy came into effect in Florida in 1975, and it was charged only on probate assets.

That presented a loophole in that the decedent could get around this by ensuring nothing goes to probate, which necessitated a 1999 revision to change that. The alteration brought forth the matter of the elective estate and levying a percentage on that so that surviving spouses aren’t left high and dry. 

What is the elective estate? 

Florida laws consider the following assets to be part of the elective estate, against which the 30% that is the elective share is charged:

• Totten and revocable trusts
• Pay on Death and joint bank accounts
• Any transfers made in the year after the deceased’s passing
• Retirement plans and pensions
• The probate estate of the deceased encompassing properties within the District of Columbia or any US state. 
• Certain irrevocable transfers.
• Life Insurable payables going to third-parties
• Joint tenancy properties, among others.

It’s best to get a lawyer to help you figure out the elective estate and how much you are entitled to in line with Florida policies. 

How to claim the elective share

There is a limited window for the surviving spouse to take up the election.

That entails two years from the passing of the spouse or once the notice of administration is beyond six months of service, depending on which comes sooner. The surviving spouse can, however, seek an extension through a petition. If the court approves the request, the elective share claim should be filed no later than the new date.

After filing, there’s a 20-day period during which time anyone with an objection can present it for hearing.

However, unless the surviving spouse had a hand in the deceased’s passing, or forced the deceased into the marriage by undue influence, duress or fraud, the objection rarely holds up in court. Such accusations must be successfully established and evidenced by the opposing party to disqualify the claim.

If no one comes forth to record an objection during these 20 days, the court enforces the elective share right via an order.

That order will map out the properties to be distributed and the elective share amount. 

Look to an attorney for help filing your claim

Florida’s elective share law can be confusing, which is why you’ll need all the help you can get from a seasoned probate lawyer.

If you are a surviving spouse wondering how to go about filing such a claim, you’re best served by an experienced attorney who’ll be able to ensure that you get all that you’re entitled to.