Florida Estate Planning: Understanding Elective Shares

In Florida, an elective share is a means by which a married individual receives a fair share of their deceased spouse’s estate, even if estate planning documents have excluded them entirely. State statutes allow a surviving spouse to receive no less than 30% of their husband or wife’s estate, limiting the damage of a malicious or “influenced” disinheriting.

Computing an Elective Share

Elective shares are calculated by measuring all estate property that should be fairly included in the computation. Examples include:

  • Probate property
  • Annuities
  • Jointly owned assets
  • Retirement accounts
  • Assets kept in a revocable trust
  • Gifts received in the year prior to death

Sometimes investigation is necessary to uncover all non-probate assets, as not everything may be properly identified or evident.

After the elective estate is tallied, its net is calculated. This means that the dead spouse’s liabilities are subtracted to determine the net elective estate. (In Florida, administration expenses do not count as liabilities, so any legal costs incurred in litigating a dispute over elective shares is borne by the other beneficiaries, not the surviving spouse.) 30% of the net elective estate is the elective share.

Satisfaction of the Elective Share

To determine the amount needed to satisfy the elective share, all amounts received or due to be received by the surviving spouse as a result of the decedent’s death are subtracted from the elective share total. In some instances, the spouse has already received full value, while in others there is an amount remaining to be paid. In the latter instance, a Florida probate court will order which assets will be used to satisfy the elective share.

Excluded Assets

Certain assets are excluded from elective share calculations. The primary one is the homestead. If the deceased spouse owned the property, it passes according to state homestead laws. If the home was owned jointly, there is a bit of a legal gray area. Some courts take the position that half of the homestead value enters the elective estate, and the other half is used to to satisfy the elective share, which can reduce the assets the spouse receives through elective share rights. Others exclude even jointly owned homesteads from the elective share computation.

Applying for the Elective Share

Disinherited spouses must file their election within the statutory time period and may have to notify beneficiaries within 20 days after the petition is filed. The statutory limit is within six months of being served with a notice of administration or two years of the other spouse’s death, whichever happens first.

If you want to enforce your right in a Florida elective share, please contact Luis E. Barreto & Associates, P.A. We will ensure that you have the knowledgeable and experienced representation to receive the assets and benefits you are entitled to.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.