Switch to ADA Accessible Theme
Close Menu
Pompano Beach Estate & Trust Litigation Lawyer
Schedule a Consultation Today! 954-491-7099

What Is The Deadline For Someone To Claim An “Elective Share” Of Their Spouse’s Estate?


Florida law provides that the surviving spouse may claim an “elective share” of their deceased spouse’s estate, notwithstanding any contrary provisions in the decedent’s estate planning documents. In simple terms, a person cannot fully disinherit their own spouse. The elective share is equal to 30 percent of the “elective estate,” which includes not just the deceased spouse’s probate estate, but also any protected homestead property, revocable trusts, and most other property that was subject to the decedent’s control before their death.

Appeals Court: Widow’s Request for Third Extension Automatically Tolled Election Deadline

There is a time limit for a spouse to take their elective share. Under Florida law, an election must be filed within 6 months of receiving the notice of administration of the deceased spouse’s probate estate or 2 years after the spouse’s death, whichever is earlier. In most cases, the six-month deadline will apply. But within that six-month period, the spouse may ask the court for an extension of time before deciding whether to take the elective share. State law says a judge has the discretion to grant such an extension “for good cause.”

Filing a petition for an extension itself automatically stops the clock or “tolls” the time for the surviving spouse to make an election. The Florida Second District Court of Appeal recently delved into the mechanics of this rule in an ongoing probate dispute, Futch v. Haney, between the surviving spouse of a deceased man and the fiduciaries overseeing his trust and estate.

The decedent passed away in April 2019. A Florida probate court appointed a personal representative of the estate in July 2019. Formal notice of the estate was served on all interested persons, including the surviving spouse, in August 2019.

In January 2020–well within the six-month period–the surviving spouse petitioned the court for an extension of time to decide whether to take her elective share. Specifically, she asked for a three-month extension to April 2020. As cause, she explained that she had only “recently received documents related to the calculation of the elective share and needed additional time to review them.”

When April came, the surviving spouse asked for (and received) a second extension until June 8, 2020, this time citing difficulties in meeting with her attorneys due to the COVID-19 pandemic. She subsequently filed for a third extension on June 9. On June 10, the surviving spouse formally took the elective share.

The personal representative objected, as did the the trustees of the decedent’s revocable trust and other beneficiaries of the estate. They argued the surviving spouse’s petition for her third and final extension was not timely filed. The probate court agreed, denied her request for a third extension, and ruled the election was filed too late.

On appeal, the Second District reversed the probate court. Once the surviving spouse filed her third extension petition, the appellate court explained, that automatically stopped the clock until the probate court made its ruling. The tolling rule “does not require the trial court to grant a petition for extension before time is tolled,” as that would render the tolling rule “meaningless.” Thus, the surviving spouse did make a timely election to claim her share of the elective estate.

Contact a Florida Estate and Trust Litigation Attorney Today

Florida’s elective share rule often complicates the administration of probate estates. If you are involved in an estate where this may be an issue, it is important to receive accurate and timely legal advice. If you need to speak with an experienced Pompano Beach elective share lawyer, contact Mark R. Manceri, P.A., today to schedule a consultation.



Facebook Twitter LinkedIn

© 2019 - 2024 Mark R. Manceri, P.A. All rights reserved.
This law firm website is managed by MileMark Media.