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

Florida’s elective share is a statutory right that entitles a surviving spouse to claim 30 percent of the deceased spouse’s “elective estate” — regardless of what the will says. Codified in Florida Statutes sections 732.201 through 732.2155, it exists to prevent a married person from disinheriting their husband or wife. For a business owner with a closely held company, real estate, and a blended family, the elective share is one of the most underestimated risks in an estate plan.

I have watched well-drafted plans unravel at probate because nobody ran the elective share math while the client was alive. A spouse signs an election, the personal representative gets a notice, and suddenly 30 percent of an “elective estate” the family never knew existed has to be funded — sometimes out of a business the surviving spouse has no role in. This article explains how the right works, what it reaches, and how to plan around it without breaking the law or your family.

What the Florida elective share actually is

The elective share is a creature of statute, not common law. Florida abolished traditional dower and curtesy decades ago and replaced them with this modern percentage-based right. Under Florida Statutes § 732.2065, the surviving spouse’s elective share is 30 percent of the elective estate. The spouse — or someone acting on the spouse’s behalf, such as an attorney-in-fact or guardian — must affirmatively elect it. It is not automatic.

Two deadlines govern the election. Under § 732.2135, the election must be filed by the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the window, and the right evaporates. That single procedural fact is why surviving spouses should talk to counsel the moment a probate opens.

Why it exists

The policy is simple: marriage is an economic partnership, and Florida does not let one spouse fully cut out the other by will or by quietly moving assets into non-probate forms. The elective share is the legislature’s floor on spousal protection. It sits alongside two other protections that often matter even more in practice — the Florida homestead protections and the family allowance under § 732.403.

What counts: the “elective estate”

Here is where most people, and frankly more than a few lawyers, get tripped up. The elective share is not 30 percent of the probate estate. It is 30 percent of the elective estate, a much broader pool defined in § 732.2035. The statute deliberately reaches past the will to capture assets people commonly use to “avoid” probate.

The elective estate generally includes:

• The probate estate — everything passing under the will or by intestacy.
• Revocable (living) trust assets — a revocable trust does not defeat the elective share.
• Pay-on-death and transfer-on-death accounts, plus jointly held accounts to the extent of the decedent’s contribution.
• Property held in joint tenancy or tenancy by the entirety, to the decedent’s fractional or contributed interest.
• The net cash surrender value of life insurance on the decedent’s life immediately before death.
• Pension, retirement, and similar plan benefits (with limits, and subject to federal law for some plans).
• Certain transfers made within one year of death and property over which the decedent retained the right to income or principal.

Notice what that list does to a typical “probate-avoidance” plan. A business owner who titles the company in a revocable trust, names the kids on a TOD brokerage account, and holds a vacation home jointly with a child has not shrunk the elective estate at all. Those assets still count. The elective share follows the value, not the title.

The homestead wrinkle

Florida’s constitutional homestead protection interacts with the elective share in ways that surprise families. If the decedent was survived by a spouse and the homestead passes other than to that spouse outright, the surviving spouse takes either a life estate or, by election under § 732.401, an undivided one-half interest as tenant in common. The homestead’s value is also accounted for in the elective share computation. For a business owner whose home equity is substantial, this is a real number, not a footnote.

How the elective share is satisfied

Once a spouse elects, the personal representative and trustee must fund the 30 percent. Section 732.2075 sets an order of contribution, and assets already passing to the surviving spouse count toward satisfying the share first. So if your plan already leaves the spouse a meaningful inheritance, the elective share may add little or nothing on top. The election is a backstop, not a windfall — it guarantees a minimum, it does not stack 30 percent on top of a generous bequest.

This is the single most important planning insight: you satisfy the elective share by giving the spouse value, not necessarily by giving the spouse control. A properly structured trust interest counts. For business owners, that distinction is everything.

Planning to protect a surviving spouse

For many couples, the goal is the opposite of “planning around” — they want to be certain the survivor is cared for. A few reliable tools:

• An elective-share trust or a marital QTIP trust. A qualifying trust under § 732.2025 lets the spouse receive income (and sometimes principal) for life while the remainder passes to children from a prior marriage. The value counts toward the share, and the spouse is protected — without handing over the family business outright.
• Funded marital provisions in a revocable trust. Pairing a living trust with a clear marital share keeps administration private while still meeting the statutory floor. If you are also considering lifetime transfers of a residence, the mechanics in this discussion of illustrate how retained interests are treated — a concept Florida echoes when it pulls retained-income property into the elective estate.
• Coordinated beneficiary designations. Life insurance and retirement accounts can be aimed at the spouse to satisfy the share efficiently, often outside probate.

Planning around the elective share — legitimately

Business owners with children from earlier marriages frequently want to keep the company in the bloodline while still treating a spouse fairly. You cannot secretly disinherit a spouse, but you have several lawful levers.

1. A marital agreement. Under § 732.702, a spouse may waive the elective share — and homestead, family allowance, and intestate rights — in a valid prenuptial or postnuptial agreement. This is the cleanest tool. A signed waiver, properly disclosed, simply removes the elective share from the equation. For a second marriage entered with a mature business, a postnuptial agreement is often the responsible move.
2. Satisfy the share with non-voting value. Give the spouse cash, life insurance, or a non-voting interest in the entity so the 30 percent is funded without diluting control of the operating business. A buy-sell agreement funded with insurance can liquidate the spouse’s economic claim without forcing a sale.
3. Elective-share trust funding. Use a qualifying trust so the spouse’s protected value is satisfied through an income interest while the underlying shares pass to your chosen successors.
4. Domicile and timing awareness. The elective share applies to Florida domiciliaries. Snowbirds with homes in two states should be deliberate about where they are domiciled, and should understand that last-minute, large transfers within a year of death can be pulled back into the elective estate under § 732.2035.

What does not work is the DIY maneuver I see most often: re-titling everything into a revocable trust or POD accounts in the belief it dodges the spouse. It does not. The statute was written precisely to defeat that move.

Charitable and advanced strategies still need spousal coordination

Sophisticated vehicles such as charitable remainder trusts, special-needs planning, and income trusts all have to be reconciled with the elective share when there is a surviving spouse. Practitioners who handle complex marital and trust structures — for example, the team that works with a — design these instruments with the spousal floor in mind so an election cannot blow up the plan later. The principle travels across state lines even when the statute numbers differ.

A practical checklist for business owners in Palm Beach

• Inventory the elective estate, not just the probate estate — include the trust, joint accounts, insurance cash value, and retirement plans.
• Run the 30 percent number and compare it to what your spouse already receives. If the bequest already exceeds 30 percent, the election is moot.
• If you have a blended family, get a valid marital agreement or build a qualifying elective-share/QTIP trust before a dispute is on the table.
• Fund the spousal share with liquidity (insurance, cash) so the operating business is not forced to the auction block.
• Revisit beneficiary designations and homestead titling — these are the silent drivers of the calculation.

Done right, the elective share becomes a known, funded line item rather than a litigation grenade. Our Florida team handles exactly these succession-and-spouse problems for closely held business owners; you can review the firm’s or start with a basic will and trust review. When you are ready to map your own numbers, reach out to schedule a consultation.

This article is general information about Florida law and is not legal advice. The elective share statutes are technical and fact-specific; consult a licensed Florida attorney about your situation.

Frequently Asked Questions

How much is the elective share in Florida?

Under Florida Statutes section 732.2065, the surviving spouse may elect to take 30 percent of the decedent’s elective estate. The elective estate is broader than the probate estate and includes revocable trust assets, certain joint and pay-on-death accounts, life insurance cash value, and some retirement benefits.

Can a revocable living trust avoid the Florida elective share?

No. Revocable trust assets are expressly included in the elective estate under section 732.2035. Funding a living trust, POD accounts, or joint titling does not reduce the surviving spouse’s 30 percent claim — the statute was written specifically to defeat that strategy.

Can a spouse waive the elective share?

Yes. Under section 732.702, a spouse can waive the elective share, homestead rights, family allowance, and intestate share in a valid prenuptial or postnuptial agreement, typically with fair financial disclosure. A signed waiver is the cleanest way for a business owner to plan around the share.

What is the deadline to claim the Florida elective share?

Under section 732.2135, the election must be filed by the earlier of six months after service of the notice of administration or two years after the decedent’s death. Missing the deadline forfeits the right, so a surviving spouse should consult counsel as soon as probate opens.

Does the elective share stack on top of what the will already leaves the spouse?

No. Assets passing to the surviving spouse count first toward satisfying the 30 percent under section 732.2075. If the inheritance already meets or exceeds the elective share, the election adds nothing — it is a minimum floor, not an additional bonus.