What is the Florida Elective Share Law?

Generally, Florida law allows people to disinherit family members, such as their children and grandchildren. However, there is a big exception when it comes to your spouse. Historically, our state was afraid that many women who had been fully dependent on their husbands would be unable to support themselves on their husband’s death. To prevent this from happening, Florida put limits on the ability to disinherit a husband or wife.

Enter the state’s “elective share” law. Found at Fla. Stat. §732.2065, it basically states that a surviving spouse can inherit whatever was provided in their spouse’s will or elect to receive 30% of the elective estate. The law applies to both husbands and wives who survive their spouse. Because of the law, it is very hard (though not impossible) to disinherit or leave a smaller amount of your estate to your spouse. Contact one of our estate planning lawyers in The Villages for more information.

What is the “Net” Elective Estate?

The elective estate is larger than the estate that passes through probate. To calculate the elective estate, you must add up the following:

• The probate estate
• Any interest in a homestead held by the deceased
• A deceased’s private pension and retirement benefits (but not Social Security)
• A deceased’s interests in securities or accounts that are payable on death
• The deceased’s interest in property owned as a joint tenant with rights of survivorship or tenancy by the entirety
• A deceased’s interest in the net cash surrender value of life insurance
• Property transferred before death if the decedent could have revoked the transfer
• Any fraudulent transfers made by the decedent one year before death

For example, many people have payable on death accounts or life insurance that passes outside probate. The value of these accounts must be included when calculating the elective estate.

The “net” elective estate is the value of the elective estate after liabilities are paid. For example, your spouse might have needed $20,000 in medical care, which get subtracted from the elective estate first.

Can an Estranged Spouse Claim the Elective Share?

Yes. This is a key point. You might be in the midst of divorcing, or you might have been living apart from your spouse for a number of years. These facts do not matter. If you are still married when you die, your spouse can claim the elective share.

Can You Work around the Elective Share?

Yes. Often, our clients are entering their second or third marriage and will have a blended family. They have children from a prior relationship who they want to inherit the bulk (or all) of their estate.

Fortunately, you can have your soon-to-be-spouse sign a valid prenuptial agreement in which they can waive their right to an elective share. They can either agree to an amount or get whatever you leave them as part of your estate plan. If you are already married, you can use a valid post-nuptial agreement to accomplish the same task.

Contact Millhorn Law Today

We work closely with our neighbors in The Villages to ensure that they leave assets to the people they want to receive them. For more information, contact our estate planning lawyers at the Millhorn Elder Law Planning Group at 800-743-9732 to learn more.

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