Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of a deceased spouse’s “elective estate,” regardless of what the will says. It exists so a married person cannot disinherit their husband or wife by leaving everything to children, a trust, or a new partner. The right is found in Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), and it reaches far beyond the probate estate to capture assets people often assume are untouchable.
If you’re a first-time planner — newly married, raising young kids, maybe blending two households — this is one of the most important and most misunderstood rules in Florida estate law. Get it wrong and your carefully built plan can be unwound after you’re gone. Get it right and you protect the people you actually intend to provide for.
What the Florida elective share actually is
Most states give a surviving spouse some form of forced-share or dower right. Florida abolished old-fashioned dower decades ago and replaced it with the modern elective share. The mechanics are deliberately broad. Under section 732.2065, the amount of the elective share is 30% of the elective estate. That percentage is fixed — it does not slide based on the length of the marriage, the spouse’s age, or whether there are kids from a prior relationship.
Here’s the part that trips people up. The “elective estate” is not the same as the probate estate. Section 732.2035 pulls in a long list of non-probate assets to stop people from gaming the system. The legislature anticipated that a spouse trying to cut out their husband or wife would simply move money into a revocable trust or retitle accounts, so the statute reaches through those arrangements.
The election belongs to the surviving spouse alone (or, in narrow circumstances, a guardian or attorney-in-fact acting on their behalf). It must be filed within the deadline set by section 732.2135 — generally the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the window and the right is gone.
What counts toward the elective estate
This is where the rubber meets the road. When clients say “but I left that to my daughter, the spouse can’t touch it,” they’re usually wrong. Section 732.2035 sweeps in assets most people think of as outside probate.
- The probate estate — assets passing under the will or by intestacy.
- Revocable (living) trusts — the classic “I’ll just put it in a trust” move is fully captured.
- Pay-on-death and transfer-on-death accounts, plus most jointly held accounts to the extent of the decedent’s contribution.
- Retirement accounts and certain pension benefits — IRAs and similar plans are included in the elective estate calculation.
- The net cash surrender value of life insurance on the decedent’s life (note: this is the cash value during life, not necessarily the full death benefit).
- Property over which the decedent held a general power of appointment.
- Certain transfers made within one year of death, designed to stop deathbed gifting that drains the estate.
Because the net is so wide, you cannot defeat the elective share by simply avoiding probate. A revocable trust — the workhorse of most Florida estate plans — does nothing to shrink the elective estate. That surprises a lot of first-time planners who were told a trust “avoids everything.” It avoids probate court. It does not avoid a spouse’s statutory claim.
Why young families and blended households should care
If you’re in your first marriage with shared kids, the elective share is usually a non-issue. You’re probably leaving the bulk of your estate to your spouse anyway, so a 30% floor never comes into play.
The friction shows up in three situations I see constantly in South Florida:
- Second marriages with children from a prior relationship. You want to provide for your new spouse but preserve assets for kids from marriage number one. Leave too little to the spouse and they can elect against the estate, pulling 30% off the top — often more than you intended them to have.
- One spouse brought significantly more assets into the marriage. Maybe a business, an inheritance, or pre-marital real estate. Without planning, that separate wealth is exposed to a 30% claim.
- Estranged or separated-but-not-divorced spouses. Florida law treats you as married until a judgment of dissolution is entered. A spouse you haven’t spoken to in years can still elect.
The emotional reality is that “planning around” the elective share is not about cheating anyone. It’s about aligning the law with what both spouses actually agreed to — often in writing, before they married.
How to plan around the elective share (legitimately)
You have a handful of real tools. Some are airtight; some require finesse.
1. A prenuptial or postnuptial agreement
This is the cleanest waiver. Section 732.702 expressly allows spouses to waive elective-share rights by a written, signed agreement. A valid prenup or postnup can waive the elective share, the homestead protections, the family allowance, and intestate rights. For a prenup, fair financial disclosure is good practice but the statute is forgiving; for a postnup (signed after the wedding), full and fair disclosure of assets is required for the waiver to hold up. Sloppy DIY agreements get challenged constantly — this is not a form-download project.
2. The elective-share trust (“EST”)
You don’t always have to hand the spouse 30% outright. Sections 732.2025 and 732.2095 let certain interests count toward satisfying the elective share. A properly drafted elective-share trust — giving the spouse income for life and meeting the statutory requirements — can satisfy a portion of the obligation while keeping principal headed to your children. This is the workhorse tool for blended families: the spouse is provided for, the kids ultimately inherit, and the statute is honored.
3. Adequate provision under the will or trust
Sometimes the simplest plan is to leave the spouse at least their 30% in a form they’d accept, removing any incentive to elect. If electing gets them nothing more than the plan already provides, they usually won’t bother with the cost and conflict of an election.
4. Lifetime gifting — with caution
Transfers made more than one year before death generally fall outside the elective estate. But timing matters enormously, and last-minute gifting to dodge a spouse can be pulled back in. This is a strategy for the genuinely long-term, not a deathbed maneuver.
For families weaving Medicaid eligibility or special-needs concerns into the picture, these tools intersect with planning vehicles you might not expect. Our colleagues at Morgan Legal Group walk through how a reshapes who controls assets and when — concepts that echo the income-interest mechanics behind a Florida elective-share trust. Where a beneficiary has a disability or relies on public benefits, a can preserve support without disqualifying them. The structural lessons travel across state lines even though the statutes don’t.
Homestead: the rule that overlaps with everything
You cannot talk about the elective share in Florida without talking about homestead. The Florida Constitution (Article X, section 4) and section 732.401 give a surviving spouse powerful rights in the marital residence — rights that exist independently of the elective share.
If a decedent is survived by a spouse and descendants, the spouse generally takes either a life estate in the homestead with a remainder to the descendants, or — under section 732.401(2) — can elect to take a 50% undivided tenant-in-common interest instead. That election must be made within six months of death and is separate from the elective-share election. Homestead also cannot be devised away from a spouse or minor child if either survives. For young families, this is often the single most valuable asset in the estate, and the constitutional protections override a contrary will.
The practical takeaway: homestead and elective share are two different claims with two different deadlines. A surviving spouse may pursue both, and a good plan accounts for each separately.
Common mistakes I see first-time planners make
- Assuming a revocable trust defeats the spouse’s claim. It doesn’t — the trust is squarely in the elective estate.
- Naming children as beneficiaries on retirement accounts to “skip” the spouse. Those accounts still count toward the elective estate, and federal ERISA rules add their own spousal-consent layer for many 401(k)s.
- Relying on an old prenup that lacked disclosure. Waivers get attacked. If your agreement is thin, fix it now with a postnup or updated documents.
- Forgetting the deadlines. Both the elective-share and homestead elections are time-barred. Personal representatives who fail to serve proper notice can extend a spouse’s window.
- Not coordinating beneficiary designations with the will. Your plan is only as good as your weakest titling decision.
How the math actually works
Once a spouse elects, the personal representative tallies the entire elective estate, multiplies by 30%, and then credits everything the spouse is already receiving — outright bequests, qualifying trust interests, jointly held property, beneficiary designations, and so on. The spouse is entitled to the shortfall. Section 732.2075 sets the order in which assets are tapped to make up that gap, so beneficiaries don’t all contribute equally; the statute has a priority sequence. If the spouse already receives 30% or more through other means, there’s effectively nothing to collect, which is exactly why “adequate provision” is such an effective strategy.
Where to go from here
The elective share rewards intentional planning and punishes guesswork. Whether you’re protecting a surviving spouse or thoughtfully planning around one, the move is the same: map every asset, understand how each is titled, and build a plan that survives a challenge. Start with the basics on our wills and estate documents page, review how administration unfolds in Florida probate, and when you’re ready for a tailored plan, reach out to our team.
Florida-specific estate strategy is its own discipline, and the statutes shift periodically — the elective share provisions have been refined more than once. Our build plans that account for the elective share, homestead, and your family’s actual goals, so the people you love are protected and your wishes hold up.
This article is general information, not legal advice. Statutes and dollar figures change; consult a licensed Florida attorney about your specific situation.
Frequently Asked Questions
How much is the elective share in Florida?
It is 30% of the decedent’s elective estate under Florida Statutes section 732.2065. The percentage is fixed and does not change based on the length of the marriage or the presence of children.
Can a revocable living trust avoid the Florida elective share?
No. Assets in a revocable trust are included in the elective estate under section 732.2035. A revocable trust avoids probate court but does not defeat a surviving spouse’s statutory elective-share claim.
Can a spouse waive their elective share rights in Florida?
Yes. Under section 732.702, spouses can waive elective-share, homestead, and intestate rights through a written, signed prenuptial or postnuptial agreement. A postnuptial waiver requires full and fair financial disclosure to be enforceable.
What is the deadline to claim the elective share?
Under section 732.2135, the election must generally be filed by the earlier of six months after service of the notice of administration or two years after the decedent’s death. Missing the deadline forfeits the right.
Is the elective share the same as Florida homestead rights?
No. They are separate claims with separate deadlines. Homestead rights under Article X, section 4 of the Florida Constitution and section 732.401 protect the surviving spouse’s interest in the marital home independently of the 30% elective share, and a spouse may pursue both.
