Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

The Florida elective share is a surviving spouse’s legal right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust says. It exists so a married person cannot fully disinherit a husband or wife. The elective estate is calculated under Florida Statutes Chapter 732 (specifically §732.2035) and reaches far beyond the probate file, pulling in trusts, jointly held property, certain retirement accounts, and some gifts made before death.

If you are a retiree or a snowbird who recently became a Florida resident, this is one of the most consequential and most misunderstood rules in our state’s estate law. Plenty of people arrive from New York, New Jersey, or Connecticut assuming their old plan still does what they intended. Often it doesn’t. Below, I’ll walk through how the elective share actually works, what counts, the deadlines that quietly destroy claims, and the legitimate ways couples plan around it.

What the Florida elective share is — and why it exists

Florida, like most states, does not let a married person leave a spouse with nothing. The elective share is the mechanism that enforces that policy. Under Florida Statutes §732.201, a surviving spouse may elect to take a 30% share of the elective estate instead of whatever the deceased spouse left them under the will or trust. The surviving spouse chooses; the personal representative does not, and neither do the other beneficiaries.

The number to remember is 30%. It has been 30% of the augmented “elective estate” since the major 2001 reforms, which deliberately expanded what the share reaches so a spouse couldn’t be cut out through clever non-probate transfers. Before those reforms, someone could pour everything into a revocable trust or joint accounts and leave a spouse staring at a 30% slice of an empty probate estate. That loophole is gone.

The elective share is separate from homestead protections and from the spouse’s right to a family allowance and exempt property. A surviving spouse can be entitled to several of these at once. They interact in ways that surprise people, which is why the math is rarely something to eyeball on the back of an envelope.

What counts: the “elective estate” is bigger than the probate estate

This is the part that trips up nearly everyone. The elective estate defined in §732.2035 is far broader than the assets that pass through probate. It generally includes:

• The deceased spouse’s probate estate — assets titled solely in their name with no beneficiary designation.
• The decedent’s interest in revocable (living) trusts — funding a trust does not shield assets from the elective share.
• Pay-on-death and transfer-on-death accounts, and the decedent’s ownership share of jointly held property with right of survivorship.
• The net cash surrender value of life insurance on the decedent’s life immediately before death.
• Amounts in retirement and pension accounts (IRAs, 401(k)s, and similar plans).
• Certain gifts made within one year of death above the federal annual gift-tax exclusion, and property over which the decedent held a general power of appointment.

In other words, you cannot defeat the elective share simply by retitling assets into a trust or naming your children as beneficiaries. Florida already anticipated those moves. For seasonal residents who still keep significant accounts up north, note that the elective share applies to a deceased Florida domiciliary’s property; establishing Florida domicile is exactly what brings these rules into play.

What is generally excluded

Not everything gets swept in. The statute carves out items such as property the surviving spouse irrevocably waived (more on that below), certain proceeds already irrevocably committed elsewhere, and property transferred with the spouse’s written consent. The contours are technical, and the inclusion rules in §732.2045 deserve a careful read before anyone assumes an asset is “safe.”

How the 30% is actually satisfied

A common misconception is that the surviving spouse simply receives a check for 30% of everything. The reality is more layered. Florida law assigns “elective share property” toward satisfying the share before anyone has to write a check. Assets already passing to the spouse — say, a jointly owned bank account or property left to the spouse outright — are counted first toward the 30%.

So if a spouse is already inheriting roughly a third of the elective estate through joint accounts, beneficiary designations, and outright gifts, the elective share may be largely satisfied, and the election adds little. If the spouse was left almost nothing, the other beneficiaries contribute proportionally to make up the difference. The statute (§§732.2075–732.2145) lays out the order of contribution so the burden is shared fairly rather than falling on one unlucky heir.

One nuance worth flagging for our retiree clients: property passing in a qualifying elective share trust for the spouse can count toward the share at full value, which lets a planner provide for a second spouse while still ultimately directing assets to children from a first marriage. That tool is a workhorse in blended-family planning.

The deadlines that quietly kill an elective share claim

The right to an elective share is not automatic. The surviving spouse must file an election, and the window is unforgiving. Under §732.2135, the election generally must be filed by the earlier of:

1. Six months after service of the notice of administration on the surviving spouse, or
2. Two years after the decedent’s death.

There is a procedure to request an extension if filed before the deadline, but it is not something to rely on. I have watched surviving spouses lose a meaningful six-figure entitlement because the family assumed “the estate would just handle it.” It will not. The election is the spouse’s affirmative act, and missing the deadline forfeits the right. If you are a recently widowed Florida resident, this is a phone call to make in weeks, not months.

Planning around the elective share — legitimately

Now the other side of the coin. Many couples — especially in second marriages, which are common among retirees relocating to Palm Beach — want to provide for a spouse during life but direct the bulk of an estate to children from a prior marriage. Florida gives you legitimate tools to do exactly that. Trying to dodge the share through secret transfers does not work; structuring the plan openly does.

1. A prenuptial or postnuptial agreement

The cleanest path is a written waiver of elective-share (and often homestead) rights under §732.702. Spouses can waive these rights before or after marriage. A pre-marital waiver doesn’t require financial disclosure to be valid, but a post-marital waiver generally does — and full, fair disclosure makes any agreement far harder to attack later. For couples marrying later in life with assets and adult children on each side, a thoughtfully drafted marital agreement is usually the centerpiece of the plan.

2. The elective share trust

Instead of fighting the 30%, you can satisfy it in a controlled way. A properly structured elective share trust gives the surviving spouse income for life (and limited access to principal), counts toward the elective share, and then passes the remainder to your chosen beneficiaries. The spouse is protected; the children’s inheritance is preserved. This is conceptually similar to the QTIP trusts many of our clients used up north, and it pairs naturally with strategies like for clients who still hold property in multiple states.

3. Coordinated beneficiary designations and titling

Because assets already passing to the spouse count toward the 30%, you can often satisfy much of the share through deliberate beneficiary designations and joint titling rather than carving up the residuary estate. This keeps probate cleaner and reduces the odds of a contested election. It only works when the plan is coordinated — scattered, contradictory designations are how spouses end up over- or under-provided for.

4. Income-focused vehicles for long-term-care planning

Snowbirds frequently juggle Florida estate planning with Medicaid and long-term-care concerns that originate in their home state. Specialized vehicles such as a can preserve eligibility for benefits while still providing for a spouse — useful when one spouse needs care and the other must keep enough to live on. These tools have to be coordinated with the elective share rather than bolted on afterward, because how assets are held directly affects what the surviving spouse can claim.

For clients whose situation is rooted primarily in Florida, our can build the marital agreement, the trust, and the titling into one coherent plan rather than three disconnected documents.

Common mistakes I see with snowbirds and retirees

• Assuming an out-of-state plan still works. A New York or New Jersey plan drafted before the move may not account for Florida’s 30% augmented elective estate or its homestead rules. Establishing Florida domicile changes the analysis.
• Believing a revocable trust shields assets. It does not. Trust assets are squarely inside the elective estate.
• Forgetting that retirement accounts and life insurance count. These are often a retiree’s largest assets, and people are stunned to learn they’re part of the calculation.
• Skipping the marital agreement in a second marriage. Without a valid waiver, the surviving spouse’s 30% can override the children’s expected inheritance entirely.
• Missing the filing deadline. The election right evaporates if not exercised in time.

When to bring in a Florida estate attorney

If you are remarried, if you have children from a prior relationship, if you became a Florida resident after building your plan elsewhere, or if your spouse recently passed and you’re unsure whether to make the election, this is the moment to get specific advice. The elective share rewards planning and punishes assumptions. A short conversation now is far cheaper than a contested probate later.

You can review our related guidance on Florida wills and the Florida probate process, or contact our Palm Beach office to talk through how the elective share fits your situation.

This article is general information, not legal advice. Elective-share outcomes depend on your specific facts, asset titling, and current Florida law. Consult a licensed Florida estate planning attorney before acting.

Frequently Asked Questions

How much is the Florida elective share?

It is 30% of the deceased spouse’s elective estate, as set by Florida Statutes §732.201. The elective estate is broader than the probate estate and includes revocable trusts, jointly held property, certain retirement accounts and life insurance, and some recent gifts under §732.2035.

Can a revocable living trust avoid the Florida elective share?

No. Funding a revocable trust does not protect assets from the elective share. Florida’s 2001 reforms expressly pull a decedent’s interest in revocable trusts into the elective estate, along with other non-probate transfers, so the 30% reaches those assets.

How long does a surviving spouse have to claim the elective share?

Under §732.2135, the election generally must be filed by the earlier of six months after service of the notice of administration on the surviving spouse, or two years after the date of death. Missing the deadline forfeits the right, though a timely extension request is sometimes possible.

Can spouses waive the Florida elective share?

Yes. Spouses can waive elective-share and homestead rights in a prenuptial or postnuptial agreement under §732.702. A pre-marital waiver does not require financial disclosure, but a post-marital waiver generally does, and full disclosure makes the agreement far harder to challenge later.

Does the elective share apply to snowbirds who keep assets in another state?

The elective share applies to the estate of a person who is a Florida domiciliary at death. If you have established Florida residency, the 30% rule generally governs, even if you still hold accounts or property in your former home state, which is why relocating retirees should review their plan.