Prior to the enactment of elective share laws in Florida, a surviving spouse could be totally disinherited by the other spouse. This could be done on purpose through a will or trust, or it could be the result of a mistake in a will or poor advice.
To avoid these unfair consequences, Florida enacted elective share laws. An elective share serves as a means of protecting a surviving spouse’s right to inheritance.
What is an elective share?
An elective share is a certain percentage of a deceased spouse’s estate that the surviving spouse is entitled to. It is taken instead of what is provided for in the deceased’s will.
Under Florida’s elective share law, if your spouse dies and leaves you with nothing in their will, you can override the terms of the will and choose to collect 30% of your deceased spouse’s estate.
This law applies to all surviving spouses, regardless of gender. It is meant to protect their right to the contributions they made to their spouse’s estate, as well as protect them from unfair wills or mistakes in wills.
What is included in the elective estate?
Prior to 1999, a surviving spouse’s elective share only applied to their deceased spouse’s probated estate. However, now property included in an elective estate consists of:
- Assets in the probated estate
- Your deceased spouse’s homestead
- Your deceased spouse’s interest in pay on death or transfer on death accounts
- Your deceased spouse’s interest in property co-owned with right of survivorship, held in joint tenancy with right of survivorship or tenancy by the entirety, and
- Your deceased spouse’s interest in accounts registered in trust
You cannot be disinherited from your right to an elective share just because your spouse put their assets in a trust, transfer-on-death account or other non-probate assets.
Your elective share does not reduce what you would have inherited in your deceased spouse’s will. The elective share serves as a means of protecting a surviving spouse’s right to an inheritance. It can be an important part of your estate planning strategy.