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Frequently Asked Questions About Florida’s “Elective Share” Rules


If you are married at the time of your death, your spouse has certain inheritance rights under Florida law. Specifically, Section 733.201 of the Florida Statutes grants the surviving spouse “the right to a share of the elective estate of the decedent.” There is often confusion surrounding the elective share, however, and how it is and is not applied in a given probate case. Without offering any specific legal advice, here are some common questions we get about Florida’s elective share rules.

Who is allowed to claim an elective share?

Only a surviving spouse can claim an elective share. It does not apply to children, other relatives, or unmarried partners.

Is the “elective estate” the same thing as the “probate estate”?

Normally, the assets that pass under a person’s will is considered their probate estate. The probate estate is part of the elective estate. But the elective estate may include other assets outside of the probate estate. For example, the deceased spouse’s interest in the couple’s protected homestead property (primary residence) is also included in the elective estate. So are any “pay on death” or “transfer on death” assets that designate a beneficiary outside of probate. The elective estate also includes any transfers made by the deceased spouse to a revocable trust during their lifetime.

What kinds of property are excluded from the elective estate?

Property that was subject to an irrevocable transfer is not considered part of the elective estate, as is any property sold for a “reasonable amount” during the deceased spouse’s lifetime. (In other words, the deceased spouse did not give the property away for below-market value.) Additionally, any property transferred with the written consent of the surviving spouse is properly excluded from the elective estate.

How much is the elective share?

The surviving spouse is entitled to claim a 30 percent share of the elective estate.

What if the decedent excluded the spouse from their will?

The purpose of the elective share rule is to prevent such outright disinheritance. The surviving spouse may claim the elective share regardless of what the deceased spouse’s will says.

Is there a time limit to claim the elective share?

Yes. The surviving spouse must file their election with the court within the earlier of (1) six months after notice is served regarding the administration of the deceased spouse’s estate; or (2) 2 years after the date of the deceased spouse’s death.

How does a prenup affect elective share rights?

If a couple signs a prenuptial or postnuptial agreement, it may contain provisions waving either spouse’s right to claim an elective share in the other spouse’s estate. Assuming the agreement is enforceable, such waivers are binding.

Contact a Florida Elective Share Attorney Today

If you are involved in a legal dispute involving a surviving spouse’s inheritance rights, it is best to speak with a qualified Pompano Beach elective share lawyer. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.



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