Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

The Florida elective share is a surviving spouse’s statutory right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. Codified in Florida Statutes sections 732.201 through 732.2155, it is a near-unwaivable floor designed so that no spouse can be entirely disinherited. For high-net-worth families in Boca Raton, the elective share is rarely a footnote — it is often the single largest variable in whether an estate plan holds together or unravels in litigation.

I have seen sophisticated plans built around a revocable trust, layered with payable-on-death accounts and jointly titled real estate, that the planning spouse believed quietly sidestepped the surviving spouse. They did not. Florida’s elective share statute reaches almost all of it. Below is how the rule actually works, what gets pulled into the calculation, and how to plan around it the legitimate way — through waivers and structure, not wishful thinking.

What Is the Florida Elective Share?

When a married person dies domiciled in Florida, the surviving spouse may elect to receive 30% of the elective estate instead of (or in addition to, depending on the math) whatever the decedent left them by will, trust, or beneficiary designation. The right exists even if the will expressly disinherits the spouse. It is the law’s blunt answer to a simple policy question: a person should not be able to abandon their spouse financially through estate-planning paperwork.

The election is the surviving spouse’s choice. No one is forced to take it. A spouse who was already left, say, 50% of a large estate will usually ignore the elective share entirely. The fight happens when a spouse was left far less than 30% — a second marriage where the bulk of the estate was steered to children from a first marriage is the classic Boca Raton scenario.

30% of What, Exactly?

The percentage is the easy part. The hard part — and the part that surprises most people — is the definition of the elective estate. Florida deliberately made it broad under section 732.2035 so that common will-substitutes cannot be used to shrink the spouse’s share. The elective estate is not the probate estate. It is much larger.

What Counts Toward the Elective Estate

This is where careful, expensive plans most often fail. Section 732.2035 sweeps a wide range of assets into the calculation, including:

• The probate estate — everything passing under the will.
• Revocable (living) trust assets — a funded revocable trust does not defeat the elective share.
• Payable-on-death and transfer-on-death accounts — bank and brokerage accounts with beneficiary designations.
• Jointly held property with right of survivorship — the decedent’s fractional interest is counted.
• The net cash surrender value of life insurance on the decedent’s life immediately before death.
• The decedent’s interest in qualified retirement plans and IRAs.
• Property transferred within one year of death beyond annual-exclusion gifting, and certain transfers where the decedent retained control or income.
• Amounts the spouse already receives from the estate, which are credited against the 30% so the spouse is not paid twice.

The practical takeaway: the favorite tools for avoiding probate — revocable trusts, joint titling, beneficiary designations — do nothing to avoid the elective share. They were built to dodge the wrong target. If your goal is to limit a spouse’s claim, none of these structures, standing alone, accomplish it.

What Generally Falls Outside

The statute carves out some items, including certain irrevocable transfers made before the marriage or more than a year before death without retained control, qualifying transfers to which the spouse consented in writing, and proceeds of policies or benefits payable to the surviving spouse. Irrevocability and timing are the recurring themes. An asset truly given away, long before death, with no strings attached, can sit outside the elective estate — which is precisely why advance planning matters so much.

Deadlines: The Election Window Is Short and Unforgiving

A surviving spouse who wants to elect cannot wait indefinitely. Under section 732.2135, the election must be filed by the earlier of:

1. Six months after the date of service of the notice of administration on the surviving spouse, or
2. Two years after the decedent’s death.

The court may extend the deadline for good cause if a request is made within the period, but no one should count on that. A spouse who sits on the right can lose it. On the other side, an estate’s personal representative can effectively start the clock by serving the notice of administration — making prompt, correct service a meaningful tactical step. These are not deadlines to manage from memory; they are calendar-and-docket deadlines that an experienced Florida estate planning attorney tracks from the first day of administration.

How to Plan Around the Elective Share — Legitimately

“Planning around” the elective share does not mean hiding assets or hoping the spouse misses a deadline. Those approaches lose, and they invite fee-shifting and bad faith findings. The defensible routes are narrower and far more effective.

1. A Valid Spousal Waiver (the Cleanest Tool)

The elective share can be waived. Under section 732.702, a spouse may waive elective-share rights — along with homestead, exempt property, and family allowance — by a written contract signed by the waiving spouse. This is most commonly done through a prenuptial or postnuptial agreement.

A waiver signed before marriage does not require financial disclosure to be enforceable. A waiver signed during marriage (a postnuptial agreement) generally requires fair and reasonable disclosure of the other spouse’s assets, or it is vulnerable to attack. For blended families and second marriages — common in affluent Boca Raton households — a well-drafted prenuptial agreement is by far the most reliable way to direct wealth to children from a prior relationship without leaving the estate exposed to a 30% claim.

2. Lifetime Irrevocable Transfers, Done Early

Because the elective estate looks back only one year for most gifts and excludes genuinely completed irrevocable transfers, moving assets out of your control well in advance can shrink the base the 30% applies to. This must be real: an irrevocable trust where you retain control, income, or a right to revoke will be pulled back in. The transfer has to be one you cannot undo. That is a serious decision with tax and asset-protection consequences, not a paper exercise.

3. Funding the Spouse’s Share Efficiently

If you intend to provide for your spouse but want control over how, the statute lets you satisfy the elective share with an interest in a qualifying trust — an “elective share trust” — rather than an outright 30% cash payout. This keeps assets managed, protects them from a surviving spouse’s later creditors or a subsequent marriage, and still satisfies the obligation. For families using trust planning for asset protection, this is often the right balance between honoring the law and keeping a steady hand on the assets.

4. Coordinate With Homestead and Family Allowance

The elective share does not operate in a vacuum. Florida’s homestead protections, exempt property rights, and the family allowance under section 732.403 all run alongside it and can change the real economics dramatically. Homestead in particular can override testamentary wishes entirely when a spouse and minor children are involved. A plan that addresses the elective share but ignores homestead is only half a plan.

The High-Net-Worth and Asset-Protection Angle

For affluent families, the elective share intersects with strategies that go well beyond a simple will. Some of the same structures used to shield assets from creditors and future claims — irrevocable trusts, properly seasoned transfers, and dedicated planning vehicles — also influence what lands inside the elective estate. The overlap is not accidental; control and timing drive both analyses.

Clients who already use sophisticated trust planning are sometimes surprised that vehicles built for other goals interact with spousal rights. A , for example, is built around irrevocability and relinquished control — the very features that determine whether assets sit inside or outside an elective estate — and the planning logic translates across state lines even where the specific program rules differ. Likewise, income-focused vehicles such as a illustrate how an irrevocable structure changes the character of an asset for multiple purposes at once. The lesson for Florida families is the same: the more control you keep, the more the law keeps the asset within reach of a surviving spouse.

Common Mistakes I See

• Believing a revocable trust defeats the elective share. It does not. This is the most expensive misconception in Florida estate planning.
• Relying on beneficiary designations and joint accounts to disinherit a spouse. All counted.
• Skipping a prenuptial agreement in a second marriage. The single biggest avoidable exposure for blended families.
• Signing a postnuptial waiver without full financial disclosure. It may be unenforceable when it matters most.
• Ignoring the election deadline. On both sides — spouses lose the right by waiting; estates fail to start the clock.

When to Bring in a Florida Estate Planning Attorney

If you are entering a second marriage, restructuring a large estate, or worried that a spouse may make a claim against assets you intend for your children, the elective share should be addressed head-on while everyone is healthy and cooperative — not litigated after a death. The same is true if you are a surviving spouse who suspects you were left less than the law allows; the election window is short, and the calculation is complex enough that it almost always pays to have the elective estate independently assembled and valued.

Our Boca Raton practice focuses on high-net-worth and asset-protection planning, and the elective share is woven into nearly every plan we build. To review your situation, see our wills and trusts overview, learn more about Florida probate, or contact our office to schedule a consultation.

Frequently Asked Questions

How much is the elective share in Florida?

The Florida elective share is 30% of the decedent’s elective estate. The elective estate is defined broadly under Florida Statutes section 732.2035 and includes far more than the probate estate, such as revocable trust assets, payable-on-death and joint accounts, certain life insurance values, and retirement accounts.

Can a revocable living trust avoid the elective share in Florida?

No. A revocable (living) trust does not defeat the elective share. Florida deliberately includes revocable trust assets, beneficiary-designated accounts, and jointly titled property in the elective estate so that common probate-avoidance tools cannot be used to disinherit a surviving spouse.

What is the deadline to claim the elective share in Florida?

Under Florida Statutes section 732.2135, the surviving spouse must file the election by the earlier of six months after being served the notice of administration or two years after the decedent’s death. A court may grant an extension for good cause if requested within the period, but the deadline is otherwise strict.

Can a spouse waive the Florida elective share?

Yes. Under section 732.702, a spouse can waive the elective share (and homestead, exempt property, and family allowance) by a signed written agreement, typically a prenuptial or postnuptial agreement. A prenuptial waiver does not require financial disclosure; a postnuptial waiver generally does to be enforceable.

Does the elective share apply if the will leaves the spouse nothing?

Yes. The elective share exists precisely to prevent total disinheritance. Even if a will or trust leaves the surviving spouse nothing, that spouse may elect to receive 30% of the elective estate, subject to the filing deadlines and any valid waiver.