The Florida elective share is a surviving spouse’s legal right to claim 30% of the deceased spouse’s “elective estate” — regardless of what the will says. It exists so that one spouse cannot disinherit the other by leaving everything to children, a trust, or someone else entirely. The right is created by Florida Statutes §732.201 and the sections that follow, and the 30% figure reaches far beyond probate assets to include trusts, jointly held accounts, and certain transfers made during life.
If you are building your first estate plan as a married couple, this is one of the few rules in Florida law that can quietly override your carefully drafted documents. Below is how it actually works, who it protects, what it captures, and the legitimate ways couples plan around it.
What the Florida elective share is — and why it exists
Florida is not a community property state. In community property states, a surviving spouse already owns half of most assets acquired during the marriage. Florida doesn’t work that way, so the Legislature built a different protection: the elective share. The idea is simple even if the math isn’t. A long-married spouse should not be able to walk into a courthouse after their husband or wife dies and discover they were left nothing.
The right belongs to the survivor, and only the survivor (or someone acting on their behalf, like a guardian or an attorney-in-fact with proper authority). It is not automatic. The surviving spouse has to elect to take it, in writing, within strict deadlines. Do nothing, and the will or trust controls. File the election, and the estate must satisfy that 30% claim before the rest of the plan plays out.
For young families and first-time planners, the takeaway is reassuring on one hand and cautionary on the other. If you’re the spouse being provided for, the law has your back. If you’re the one trying to direct assets to children from a prior relationship, a charity, or a special-needs arrangement, you need to understand that your spouse holds a card you can’t simply remove with a will.
How much is the elective share in Florida?
The elective share equals 30% of the elective estate. That percentage has been fixed at 30% since Florida overhauled the statute years ago, replacing an older, narrower rule that only reached probate assets. The modern version is deliberately broad, and that breadth is where most people get surprised.
The “elective estate” is not the same thing as the probate estate. A probate estate is just what passes under the will. The elective estate is an augmented pool defined in §732.2035, and it sweeps in assets that never touch probate at all.
What counts in the elective estate
Under Florida Statutes §732.2035, the elective estate generally includes:
- The decedent’s probate estate (assets passing under the will or by intestacy).
- The decedent’s interest in jointly held bank and brokerage accounts and “pay-on-death” or “transfer-on-death” accounts.
- Property held in a revocable living trust at the time of death.
- The net cash surrender value of life insurance on the decedent’s life.
- The value of retirement accounts and pension benefits.
- Property over which the decedent held a general power of appointment.
- Certain transfers made within one year of death, and transfers where the decedent kept the right to income or possession.
That last category is the one that defeats most do-it-yourself attempts to dodge the statute. You generally cannot give everything away on your deathbed, or pour it all into a revocable trust, and expect those assets to escape your spouse’s claim. The Legislature anticipated exactly that move and wrote the augmented-estate rules to capture it.
What’s reduced or excluded
The elective estate is a net figure. Valid claims against the estate, funeral expenses, and certain mortgages and liens reduce it. Property the surviving spouse already receives — outright bequests, jointly owned property passing to them, life insurance payable to them, their share of the homestead — is credited toward satisfying the 30% under §732.2075. In plain terms: the survivor doesn’t get 30% on top of everything else; the law first counts what they already inherited and only makes up the shortfall.
Deadlines: the elective share is use-it-or-lose-it
Timing is unforgiving here, and missing a deadline is the most common way a surviving spouse loses a legitimate claim. The election must generally be filed with the probate court by the earlier of:
- Six months after the surviving spouse (or their agent) is served with the notice of administration, or
- Two years after the decedent’s death.
There is a narrow path to extend the deadline if the election is filed before the period runs and good cause is shown, but no one should rely on it. If you are a surviving spouse and you’ve just been served with notice of administration, treat the six-month clock as the real deadline and talk to a probate attorney immediately. Florida probate moves on its own schedule, and the court will not protect a right you failed to assert in time.
How the elective share is satisfied — and who pays it
Once the election is made and the elective share is calculated, the assets contributing to the elective estate share the burden proportionally under §732.2075 and §732.2085. The surviving spouse can be paid in cash or in kind, and in many estates the share is funded through an “elective share trust” that gives the survivor a qualifying income interest for life while preserving the underlying assets for the decedent’s chosen remainder beneficiaries — often children from an earlier marriage. Structured correctly, that trust can both satisfy the statute and keep the family peace.
This is where good drafting earns its keep. A blended-family plan that ignores the elective share invites a courthouse fight; one that builds a compliant marital trust into the documents from the start usually avoids it.
Florida homestead is a separate (and stronger) protection
People often confuse the elective share with Florida’s homestead protections. They overlap but are not the same. The Florida Constitution restricts how you can devise homestead property if you are survived by a spouse or minor child. If a married Floridian leaves a surviving spouse, the homestead cannot simply be willed to someone else; the spouse receives, at minimum, a life estate (or, by election, a one-half tenancy-in-common interest) under §732.401. Homestead rights exist in addition to the elective share, along with the family allowance and exempt property. A surviving spouse may be entitled to several of these protections at once, which is exactly why first-time planners should not assume a simple “I leave everything to the kids” will accomplish what they intend.
Can you plan around the Florida elective share?
Yes — but only through tools the statute actually recognizes, not through clever asset shuffling. Here are the legitimate routes.
1. A valid prenuptial or postnuptial agreement
The cleanest way to waive, limit, or restructure the elective share is by written agreement. Under §732.702, a spouse can waive the elective share (along with homestead rights, family allowance, and intestate share) in a prenuptial or postnuptial agreement. A waiver signed before marriage doesn’t require financial disclosure to be enforceable; a waiver signed after marriage generally does require fair disclosure of assets. For couples blending families or protecting a business built before the marriage, a well-drafted marital agreement is the most reliable tool available.
2. Build a compliant marital trust into the plan
Rather than fighting the 30%, many couples design around it. A marital or “elective share” trust that gives the surviving spouse a qualifying income interest can satisfy the statute while directing the remainder to the decedent’s intended heirs. This is standard practice in second-marriage planning, and it pairs naturally with broader strategies. Families thinking long-term about care costs also explore vehicles like a for legacy preservation, or, where a beneficiary’s eligibility for public benefits is at stake, a arrangement. The specific mechanics differ from state to state, but the planning instinct — provide for the spouse, protect the estate, stay inside the rules — is the same.
3. Provide enough that the election is pointless
Because the elective share is net of what the spouse already receives, leaving your spouse at least 30% of the elective estate makes the election a non-event. If the math already favors the survivor, there’s nothing to elect against. Many couples in a first marriage simply leave everything (or a clear majority) to each other, which moots the entire issue.
What does not work
- Last-minute gifting. Transfers within a year of death and transfers with retained interests are pulled back into the elective estate.
- Hiding assets in a revocable trust. Revocable trust property is squarely inside the elective estate.
- POD/TOD designations to bypass the spouse. Pay-on-death and joint accounts are counted too.
- A will that simply omits the spouse. Omission triggers the right; it doesn’t avoid it.
If your goal genuinely requires reducing a spouse’s share — say, to honor children from a prior marriage — do it through a signed marital agreement, not through workarounds the statute already closed.
Common mistakes first-time planners make
- Assuming a will is the whole plan. The elective estate reaches non-probate assets, so beneficiary designations and trusts matter just as much as the will.
- Treating homestead and elective share as one rule. They’re separate protections that can stack.
- Letting the election deadline lapse. Six months from notice of administration is short. Calendar it the day you’re served.
- Using an out-of-state agreement. A prenup drafted under another state’s law may not waive Florida-specific rights cleanly. Have a Florida attorney review it.
- Forgetting to update after a move to Florida. Couples who relocate from a community property or non-elective-share state often have plans that no longer fit Florida law.
When to talk to a Florida estate attorney
If you’re in a blended family, own a business, brought significant separate property into the marriage, or simply want your spouse fully protected, the elective share belongs on your planning checklist. For a first-marriage couple with shared assets and shared goals, the fix is often as simple as naming each other and confirming beneficiary designations line up. For everyone else, the documents need to be built with §732.2035 in mind from the first draft.
Our Florida team handles exactly this kind of work — from spousal waivers to marital trusts that satisfy the statute without surprises. You can also review the basics of Florida wills, see how the process unfolds in Florida probate, or schedule a consultation to map out a plan that protects your spouse and your wishes at the same time.
Frequently Asked Questions
How much is the elective share in Florida?
The Florida elective share is 30% of the decedent’s elective estate under Florida Statutes 732.201. The elective estate is broader than the probate estate and includes revocable trust assets, jointly held and pay-on-death accounts, certain life insurance and retirement values, and some transfers made within a year of death.
Can a surviving spouse be disinherited in Florida?
Not by a will alone. A surviving spouse can claim 30% of the elective estate regardless of what the will says. The only reliable way to limit or waive that right is a valid prenuptial or postnuptial agreement under Florida Statutes 732.702, or by leaving the spouse enough that the election is unnecessary.
What is the deadline to file for the elective share in Florida?
The election must generally be filed by the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s death. A limited extension may be available if requested before the deadline runs, but missing the deadline usually waives the right.
Is the Florida homestead the same as the elective share?
No. They are separate protections that can apply at the same time. Florida’s homestead rules under 732.401 restrict how homestead property can be left when there is a surviving spouse, giving the spouse at least a life estate or a one-half interest by election. The elective share is an additional 30% claim against the broader elective estate.
Can a prenuptial agreement waive the Florida elective share?
Yes. Under Florida Statutes 732.702, spouses can waive the elective share, homestead rights, family allowance, and intestate share by written agreement. A pre-marriage waiver does not require financial disclosure to be enforceable, but a waiver signed after marriage generally does require fair disclosure of assets.
