Florida Elective Share: Amount, Deadline, and Waivers

Under Florida’s elective share law, a surviving spouse is entitled to 30 percent of the deceased spouse’s elective estate, no matter what the will says. The elective estate is broader than the probate estate: it sweeps in revocable trusts, retirement accounts, payable-on-death designations, joint accounts, life insurance cash values, and the homestead. Property the spouse is already receiving from those sources counts toward the 30 percent, so the election is a floor on total spousal inheritance rather than an add-on. Claiming it requires a written filing with the probate court within a short window.

How Much the Share Is Actually Worth

The share is 30 percent of the elective estate.¹ That is a ceiling on what the election delivers, not a bonus stacked on top of everything else. Anything already flowing to the surviving spouse through the will, beneficiary designations, joint ownership, or life insurance is applied first toward the 30 percent figure.² A spouse who is already set to receive 25 percent through those channels gains only another 5 percent by electing.

The election also cannot make the spouse worse off. If the will already leaves the spouse more than 30 percent of the elective estate, the spouse keeps the larger amount and filing the election accomplishes nothing.³ Run the math before filing.

One other wrinkle affects what the spouse actually receives. Florida allows the share to be satisfied through an elective share trust, meaning assets held for the spouse’s benefit with income paid for life, rather than an outright cash distribution.⁴ A spouse expecting a lump sum may end up with lifetime income instead.

What Property Counts

The reach of the elective estate is the whole point of the statute. Without it, a spouse could be effectively disinherited by moving wealth into trusts, joint accounts, or beneficiary designations that skip the will. The elective estate includes:⁵

The probate estate, whether passing by will or intestacy.
The decedent’s interest in protected homestead.
Payable-on-death and transfer-on-death accounts, including “in trust for” designations.
The decedent’s fractional share of joint tenancy and tenancy by the entirety property.
Any revocable trust the decedent could still revoke or amend at death.
Property transferred but subject to a retained right of use, income, or discretionary return.
Property subject to a general power of appointment held by the decedent.
Certain substantial transfers made within one year of death.
The cash surrender value of life insurance on the decedent’s life immediately before death (not the death benefit).
Retirement accounts and pensions the decedent owned, including 401(k) plans and IRAs.

These assets are generally valued at fair market value as of the date of death.⁶ Labeling a trust “irrevocable” does not automatically remove it from the calculation. If the decedent kept the right to use trust property, receive income from it, or have principal returned at someone else’s discretion, the trust property still counts.⁵

What’s Left Out

Three categories fall outside the elective estate:⁷

Property the decedent irrevocably transferred away before the marriage.
Transfers the surviving spouse consented to in writing. Signing a federal gift tax return for split-gift treatment does not count as consent for this purpose.
Non-general powers of appointment the decedent could not exercise for their own benefit.

How Homestead Fits In

The homestead is where many surviving spouses get confused. The decedent’s interest in the protected homestead is included in the elective estate rather than excluded from it.⁵ The spouse already has separate constitutional and statutory homestead rights, usually a life estate or the option to take an undivided half-interest as a tenant in common. Because that interest passes to the spouse regardless, it counts toward the 30 percent. A life estate in homestead is valued at half the property’s fair market value, and an elected half-interest is also valued at half.⁶

When the family home is the largest asset in the marriage, homestead alone can eat up much of the 30 percent before any other property is reached. The narrow exception is when the spouse previously waived homestead rights and takes no interest at death.⁷

The Filing Deadline

The election must be filed by the earlier of two dates:⁸

Six months after the surviving spouse is served with the notice of administration, or
Two years from the date of death, if no notice of administration is served.

Whichever comes first controls, and missing it permanently waives the right. A personal representative who serves the notice of administration promptly effectively shortens the spouse’s window, and in contested estates that timing is sometimes deliberate. Extensions are available for good cause, and a timely petition for court approval or extension tolls the deadline while it is pending.⁹

How to File and Get Paid

The surviving spouse files a written election with the clerk of the circuit court handling the probate case. The election identifies the decedent, the case number, and the spouse’s intent to claim. A copy must be served on the personal representative so the estate administration can account for it.

Once the election is on file, the personal representative must petition the court to determine the amount of the share. If the personal representative fails to do so, the spouse can file the petition and recover reasonable attorney fees from the estate for the effort.¹⁰ The court then inventories the elective estate, values it, and calculates 30 percent. Appraisals of real property, businesses, or investment holdings are common at this stage.

Order of Contribution

After crediting property already passing to the spouse, any remaining shortfall is collected from other recipients in a set order:²

Class 1: the probate estate and revocable trusts.
Class 2: recipients of payable-on-death accounts, joint tenancy interests, and certain other designated assets, other than protected charitable interests.
Class 3: recipients of all remaining elective estate property.

Contributions are apportioned within a class before moving to the next. The decedent’s will or trust can change the order among classes, so this hierarchy is a default. Protected charitable interests are reached only after everything else. Final distribution typically takes several months after the contribution order is entered, since assets may need to be liquidated and disputes resolved.

Interest When Payment Is Slow

If the share is not fully paid within two years of the date of death, the unpaid balance accrues interest at the statutory rate, whether or not a contribution order has been entered.¹¹ Once a contribution order is entered, individual contributions start accruing interest 90 days later if unpaid.

When the Surviving Spouse Cannot Act

Incapacity does not eliminate the right to elect. An attorney-in-fact under a durable power of attorney or a court-appointed guardian of the property can file the election, but only with court approval, and the court considers whether the election serves the spouse’s best interests during their probable remaining lifetime.⁹ The guardian or attorney-in-fact can also request deadline extensions for good cause.

Medicaid is a live consideration here. Some state Medicaid agencies treat a spouse’s failure to claim the elective share as a disqualifying transfer of assets, on the theory that the spouse gave away property they could have received. Benefits may be denied until the share is claimed and spent down, or the agency may push for appointment of a guardian to make the election. Anyone applying for Medicaid or already receiving it should look at the elective share carefully before the deadline runs.

Waiving the Right in a Prenup or Postnup

The elective share can be waived in whole or in part by a written agreement signed by the waiving spouse in front of two subscribing witnesses. No additional consideration is required beyond signing.¹²

Timing controls what must be disclosed. A waiver signed before the marriage requires no financial disclosure. A waiver signed after the marriage requires each spouse to make a fair disclosure of their estate to the other.¹² That difference is significant. A postnuptial waiver without disclosure is vulnerable to challenge in a way that a prenuptial one is not.

A general waiver of “all rights” in a spouse’s property or estate, unless the agreement says otherwise, covers not only the elective share but also the intestate share, pretermitted share, homestead rights, exempt property, family allowance, and preference in appointment as personal representative. A waiver that was valid where and when it was signed will generally be recognized in Florida even if the couple later moves here.

Who Pays the Attorney Fees

Elective share disputes get expensive, and the court has broad discretion to shift fees. In any proceeding over entitlement to the share, the value of the elective estate, or how it should be satisfied, the court may award attorney fees and taxable costs, payable from the estate itself, from a party’s share, or as a judgment against a party’s other property.¹⁰ Both sides carry real financial risk in a contested case, which is often reason enough to work through the numbers with an attorney before the deadline forces a decision.

1
The Florida Legislature. Florida Code 732 – Probate Code: Intestate Succession and Wills
2
Florida Senate. Florida Code 732.2075 – Sources From Which Elective Share Payable; Abatement
3
The Florida Legislature. Florida Code 732.201 – Right to Elective Share
4
The Florida Legislature. Florida Code 732 – Probate Code: Intestate Succession and Wills – Section: 732.2025
5
Florida Senate. Florida Code 732.2035 – Property Entering Into Elective Estate
6
Florida Senate. Florida Code 732.2095 – Valuation of Property Used to Satisfy Elective Share
7
Florida Senate. Florida Code 732.2045 – Exclusions and Overlapping Application
8
Florida Senate. Florida Code 732.2135 – Time of Election; Extensions; Withdrawal
9
The Florida Legislature. Florida Code 732.2125 – Right of Election; By Whom Exercisable
10
The Florida Legislature. Florida Code 732.2151 – Award of Fees and Costs in Elective Share Proceedings
11
Florida Senate. Florida Code 732.2145 – Determination and Contribution; Intent
12
Florida Senate. Florida Code 732.702 – Waiver of Spousal Rights