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

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 or trust actually says. It exists to keep one spouse from disinheriting the other, and because it reaches well beyond probate assets, it can quietly override an entire estate plan. Whether you want to guarantee a spouse that protection or structure your affairs so the number is predictable, you have to understand how Florida Statutes Chapter 732 builds the calculation.

I’ve sat across the table from both sides of this. The widow who was left $25,000 in a will after a 22-year marriage, and the adult children from a first marriage who were stunned that their father’s trust didn’t shut out his second wife. Both situations turned on the same body of law. Here’s how it actually works in Miami and the rest of Florida.

What Is the Florida Elective Share?

The elective share is codified at Florida Statutes §732.201 and following. The core rule, in §732.2065, is that a surviving spouse of a person who dies domiciled in Florida is entitled to an amount equal to 30 percent of the elective estate. The spouse has to affirmatively elect it; it is not automatic. If the surviving spouse does nothing, they take whatever the will, trust, or beneficiary designations provide, even if that’s nothing.

Two things make this right powerful. First, it cannot be waived by accident or buried in fine print. Second, the “elective estate” is defined far more broadly than the probate estate. A spouse can be left out of the will entirely and still be entitled to 30% of assets the deceased thought were safely outside of probate.

Elective Share vs. Homestead and Family Allowance

People conflate the elective share with Florida’s other spousal protections, but they’re separate and they stack. A surviving spouse may also be entitled to:

• Homestead rights in the marital residence under Article X, §4 of the Florida Constitution and §732.401, including a life estate or a one-half tenancy-in-common election;
• A family allowance of up to $18,000 under §732.403 to support the spouse during administration;
• Exempt property under §732.402, such as certain household furnishings and two vehicles.

These are layered protections. The elective share is the big one, but it’s not the only one a surviving spouse can assert, and a thoughtful plan accounts for all of them at once.

What Counts in the “Elective Estate”

This is where the elective share surprises people. Under §732.2035, the elective estate includes far more than what passes through probate. It reaches:

1. The decedent’s probate estate;
2. The decedent’s ownership interest in pay-on-death and transfer-on-death accounts;
3. The decedent’s interest in property held in joint tenancy with right of survivorship (to the extent of the decedent’s contribution);
4. Most assets held in a revocable living trust;
5. The net cash surrender value of life insurance the decedent owned on their own life;
6. Certain transfers made within one year of death, and certain transfers where the decedent retained the right to income or principal;
7. The decedent’s interest in retirement and pension plans.

That fourth point is the one that trips up homemade plans. A common misbelief is that putting everything in a revocable trust defeats the spouse’s claim. It does not. Florida deliberately pulls revocable trust assets back into the elective estate so the trust can’t be used as an end-run around the surviving spouse. The same logic applies to a retained life estate in real property, a structure worth understanding for its other benefits even though it won’t dodge the elective share. (For background on how a retained life estate works, see this overview of .)

What Is NOT Counted

The statute carves out some items. Property irrevocably given away more than a year before death (and not subject to a retained interest) generally stays out. So do certain gifts the spouse consented to in writing. And the elective estate is reduced by the decedent’s enforceable debts and the costs of administration before the 30% is applied. The math runs on the net figure, not the gross.

How the 30% Is Satisfied

Once the elective estate is valued, the surviving spouse is entitled to 30% of it. But the spouse doesn’t necessarily get a check for that amount carved out of the residue. Florida law, in §732.2075, prescribes an order of contribution: assets already passing to or for the benefit of the surviving spouse are counted first toward satisfying the elective share.

In plain terms, if the spouse already inherited $400,000 outright and the elective share number is $600,000, the estate owes the difference, not the full $600,000 on top of what the spouse received. This matters enormously in blended-family planning, because property the decedent did leave the spouse reduces the additional bite. A well-drafted plan can pre-fund a large part of the elective share intentionally, so the children from a prior marriage aren’t blindsided by a contribution demand against their inheritance.

The Elective Share Trust Option

Florida even allows the share to be satisfied with a qualifying interest in trust rather than outright cash. Under §732.2025 and §732.2095, property placed in a properly structured elective share trust counts at full value toward the 30% if the spouse gets the income for life and certain control rights. This lets a planner protect principal for the next generation while still honoring the spouse’s statutory entitlement, a tool I use constantly in second-marriage situations.

Planning to Protect a Surviving Spouse

If your goal is to make sure your spouse is genuinely cared for, the elective share is a floor, not a plan. Thirty percent of a modest estate may not be enough to live on, and the election process is adversarial, slow, and expensive. Far better to build the protection in voluntarily.

• Name the spouse directly on beneficiary designations for retirement accounts and life insurance, which avoids probate and the elective-share fight altogether.
• Use a marital trust or QTIP to provide lifetime income while preserving principal for children.
• Coordinate homestead so the spouse has a secure place to live; the constitutional protections are strong but the default outcome (a life estate) isn’t always what couples want, and §732.401 allows electing a half-interest instead.
• Fund a pooled income trust or special needs trust if the surviving spouse has disability or Medicaid concerns, so an inheritance doesn’t disqualify them from benefits. A is a powerful planning vehicle in that scenario, and the same concept applies to Florida residents who need to preserve public benefits.

For families who own property or do business across state lines, coordinating Florida and New York counsel matters, because the elective share rules differ sharply between the two states. Florida’s flat 30% is simpler than New York’s tiered formula, but the asset-reach provisions are aggressive.

Planning Around the Elective Share (Lawfully)

The other half of my practice is helping people structure affairs so the elective share is predictable, or waived entirely. There is exactly one clean way to eliminate it: a valid spousal waiver.

Prenuptial and Postnuptial Waivers

Under §732.702, a spouse can waive the elective share (and homestead, and family allowance) in a written contract signed before or during the marriage. A prenuptial agreement signed before the wedding doesn’t even require financial disclosure to be enforceable as to the elective share. A postnuptial agreement signed after the wedding does require fair disclosure of assets. This distinction is statutory and people get it backwards all the time.

For second marriages, especially where each spouse brings their own children and their own wealth, a properly drafted waiver is often the kindest thing a couple can do. It removes ambiguity and prevents the survivor and the children from fighting in probate court. The agreement must be voluntary, in writing, and signed with the right formalities, so this is not a DIY project.

Why “Just Use a Trust” Doesn’t Work

I’ll say it again because it’s the single most common mistake: a revocable trust does not defeat the Florida elective share. Neither does retitling accounts as payable-on-death, nor adding the children as joint owners. The §732.2035 reach-back provisions were written precisely to catch these maneuvers. Aggressive last-minute transfers can also be unwound, and attempting them can expose the estate to litigation and personal liability for the people who helped.

Deadlines: Don’t Lose the Right by Waiting

The election is time-sensitive. Under §732.2135, the surviving spouse generally must file the election with the probate court by the earlier of six months after service of the notice of administration or two years after the date of death. Miss the window and the right is usually gone. A surviving spouse who suspects they were shortchanged should talk to a probate attorney immediately, because the clock starts whether or not anyone tells you it has.

If you’re administering an estate where a spouse may elect, you have parallel obligations: valuing the elective estate correctly, serving proper notice, and being ready for the contribution accounting. Getting the valuation wrong is one of the most litigated issues in Florida probate.

Working With a Miami Estate Planning Attorney

Every elective-share question I’ve described turns on facts specific to your marriage, your assets, and your goals. A couple in a first marriage protecting each other needs a different plan than a Miami business owner with adult children from a prior marriage and a younger spouse. Both are solvable, but not with templates.

If you want to build protection in, plan around the share with a valid waiver, or you’re a surviving spouse weighing an election, get advice before deadlines pass. Our firm handles these matters across South Florida; you can learn more about our or review the foundations on our own wills and trusts and Florida probate pages. When you’re ready to talk specifics, reach out to our office and we’ll map your situation against Chapter 732.

Frequently Asked Questions

How much is the elective share in Florida?

A surviving spouse is entitled to 30% of the decedent’s elective estate under Florida Statutes §732.2065. The election must be filed affirmatively; it is not automatic, and assets the spouse already received count first toward satisfying that 30%.

Can a revocable living trust defeat the Florida elective share?

No. Florida Statutes §732.2035 deliberately pulls revocable trust assets, joint accounts, payable-on-death accounts, and certain transfers back into the elective estate. A revocable trust changes how assets pass, but it does not reduce or eliminate a surviving spouse’s 30% elective-share right.

How can a couple legally waive the elective share?

Through a valid prenuptial or postnuptial agreement under §732.702. A prenuptial waiver signed before marriage does not require financial disclosure to bind the elective share, while a postnuptial agreement signed during marriage does require fair disclosure of assets. The waiver must be in writing and properly executed.

What is the deadline to claim the Florida elective share?

Under §732.2135, the surviving spouse must generally file the election by the earlier of six months after service of the notice of administration or two years after the date of death. Missing this deadline usually forfeits the right, so act quickly and consult a probate attorney.

Does the elective share replace homestead and family allowance rights?

No, these protections stack. A surviving spouse may claim the elective share plus homestead rights under §732.401, a family allowance up to $18,000 under §732.403, and exempt property under §732.402. Each is a separate statutory entitlement.