SURVIVING SPOUSES IN FLORIDA CAN FILE FOR AN “ELECTIVE SHARE”

Miami, Florida, residents would agree that when the breadwinner of a family passes away, the survivors or dependents have to face a number of financial challenges. In order to address this concern, English common law had a provision called elective shares. Under this provision, the survivors and dependents of a deceased breadwinner received certain financial protections.

Laws have evolved since then and the purpose of elective shares nowadays is to ensure that surviving spouses are treated in a manner similar to how spouses are treated during divorce proceedings. This is important because in many cases, it has been observed that a decedent chose to disinherit his or her spouse from the estate or only leave a meager amount for the spouse.

According to the laws in Florida, a surviving spouse may be able to receive up to 30 percent of the decedent’s estate if that surviving spouse is either disinherited from the estate or if that surviving spouse is unhappy with the amount left in his or her name. Interestingly, a surviving spouse can claim this elective even if the decedent transferred all assets into a trust prior to their death.

In Florida, a surviving spouse must file a petition for claiming elective share within six months from the date when the estate executor sent the letter of administration. After this petition is filed, a representative of the estate needs to file an elective estate inventory with the probate court.

Per Florida’s probate and estate laws, elective shares include funds from property that the deceased owned, assets that are contained in a revocable trust, funds for insurance and retirement accounts as well as any other property that was given away within a period of one year from the death of the decedent.

However, calculating the exact amount of an elective share is complex as it greatly depends on the decedent’s estate plan, which may have set some funds as exempted. If you are interested in understanding how elective share is calculated or how the entire process works, please visit our webpage about elective share. Being educated is always a good thing.

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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.