Florida’s Elective Share Laws and Protecting Disinherited Spouses

When a surviving spouse discovers they have been disinherited or left only a small portion of their partner’s estate, fights may erupt. But it’s important to know that while it can be devastating to discover that you have not been provided for in a Will or Trust, Florida law recognizes the special status of spouses and provides legal protections. One important protection is the elective share law, which allows a disinherited spouse to still claim a portion of the estate.

Skilled Pompano Beach estate litigation lawyers know how to represent surviving spouses who have been disinherited and need to claim their rightful share of an estate. Discuss your options with an attorney as soon as you can in order to safeguard your financial future.

What Is the Elective Share?

Under Florida Statutes, a surviving spouse who has been disinherited or inadequately provided for may claim an elective share of the deceased spouse’s estate. The elective share is set at 30% of the elective estate, a calculation that typically includes not only probate assets but also certain non-probate assets, such as property held in revocable trusts, payable-on-death (POD) accounts, jointly held property, and life insurance policies. This broad definition ensures that a spouse cannot be completely disinherited simply because assets were moved outside of the probate estate.

The elective share comes into play when a Will or Trust explicitly leaves a spouse nothing or only a minimal gift. It may also be brought up if assets have been transferred during the decedent’s lifetime or the estate plan attempts to prioritize children, relatives, or others over the surviving spouse, too. In these circumstances, Florida law ensures the surviving spouse has a legal remedy.

How Can I Move Forward with a Dispute?

If you believe the elective share may apply to your situation, it’s important to act quickly. Florida law sets strict deadlines:

• File an election. The surviving spouse must file an election to take the elective share with the probate court. This generally must be done within six months of receiving the notice of administration of the estate, and no later than two years after the decedent’s death. Don’t wait, the clock is already running.
• Work with an attorney. Calculating the elective estate can be complex, as it often involves tracing non-probate transfers and gathering documentation. A Pompano Beach estate litigation lawyer can help ensure the calculation is accurate and your rights are fully protected.
• Challenge improper transfers. In some cases, litigation may be required if assets were moved to avoid spousal rights. Courts have the authority to include certain transfers back into the elective estate.

Can you access the assets of a spouse who has passed away? Elective share claims are highly technical, and estates can become contentious when a surviving spouse asserts their rights. Beneficiaries may resist the claim, or the personal representative may dispute which assets should be included. Having the experienced attorneys at Mark R. Manceri, P.A. on your side ensures you understand your rights. Schedule a confidential consultation today.