Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate” — even if the will or trust leaves them less, or nothing at all. It is codified in Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), and it reaches far beyond the probate estate to capture revocable trusts, certain joint accounts, retirement plans, and even some lifetime transfers. For Palm Beach professionals and physicians with layered estate plans, the elective share is the single most-overlooked way a carefully drafted plan can be unwound after death.
I have sat across the table from too many surviving spouses who were quietly disinherited, and from too many adult children of a first marriage who were stunned to learn that a prenup or a beneficiary designation did not insulate the estate the way Dad assumed. The elective share is unforgiving precisely because it is mechanical. Understanding the math — and the narrow set of tools Florida permits to plan around it — is essential whether your goal is to protect a spouse or to honor a different distribution scheme.
What the Florida Elective Share Actually Is
Under Fla. Stat. § 732.2065, the elective share equals 30% of the value of the elective estate. The right belongs to the surviving spouse personally; it is not automatic. The spouse (or an attorney-in-fact or guardian acting under specific authority) must affirmatively elect, and the deadline is strict.
This is conceptually different from a few other Florida spousal protections people confuse it with:
- Homestead rights — separate constitutional and statutory protections under Fla. Stat. § 732.401 governing the marital residence.
- Family allowance and exempt property — § 732.402 and § 732.403, which give the spouse furniture, vehicles, and a cash allowance during administration.
- Pretermitted (omitted) spouse — § 732.301, which applies when someone marries after executing a will and never updated it.
The elective share stacks on top of homestead, exempt property, and family allowance in most situations. A spouse who takes the elective share does not forfeit those other rights, which is why the true exposure is often larger than the headline 30%.
The “Elective Estate”: Why 30% Is Bigger Than It Sounds
The genius — and the trap — of the Florida statute is the breadth of the elective estate defined in Fla. Stat. § 732.2035. The 30% is not calculated against the probate estate alone. The Legislature deliberately built an “augmented” estate concept to defeat the old practice of disinheriting a spouse by simply moving everything into nonprobate vehicles.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in property that passed by right of survivorship or “pay-on-death” / “transfer-on-death” designation.
- The decedent’s revocable trust assets (the classic living trust).
- The net cash surrender value of life insurance on the decedent’s life.
- Amounts payable under retirement plans, IRAs, and similar accounts.
- Property the decedent transferred within one year of death without adequate consideration, and certain transfers where the decedent retained the right to income or possession.
For a physician with a brokerage account titled jointly, a 401(k), a cash-value life policy, and a funded revocable trust, the elective estate can dwarf whatever happens to sit in probate. Drafting a will that leaves the spouse a modest bequest does almost nothing if the rest of the wealth is exposed under § 732.2035.
How the Share Gets Satisfied
Once the value is fixed, § 732.2075 and § 732.2085 govern the order in which assets are tapped to fund the 30%. Property already passing to the spouse — including the value of a beneficiary designation in the spouse’s favor or assets in a qualifying elective-share trust — is credited first. Only the shortfall is then collected pro rata from other recipients. This matters enormously: a plan that names the spouse as beneficiary of the IRA may have already satisfied much of the share without anyone writing a check.
Deadlines and Procedure — Where Spouses Lose the Right
The election is governed by Fla. Stat. § 732.2135. The surviving spouse must file the election with the probate court by the earlier of:
- Six months after service of the notice of administration, or
- Two years after the decedent’s death.
There is a limited mechanism to request an extension before the deadline runs, but waiting is fatal in most cases. I have watched grieving spouses lose six-figure rights because nobody told them the clock had started when the notice of administration arrived. If you are a surviving spouse anywhere in Palm Beach County, treat that notice as a deadline trigger, not junk mail. Speak with counsel immediately — see our Palm Beach estate attorneys if you need to move quickly.
Planning Around the Elective Share Legitimately
Floridians cannot simply draft their way out of the elective share through clever titling — the augmented-estate rules anticipate that. But the law does provide three legitimate routes, and they are the bread and butter of careful estate planning for blended families and high-net-worth professionals.
1. Waiver by Marital Agreement
The cleanest tool is a written waiver under Fla. Stat. § 732.702. A spouse may waive the elective share — and homestead, exempt property, and family allowance — entirely or partially, before or after marriage. The statute is notably forgiving on procedure: a postnuptial waiver does not require financial disclosure, while a prenuptial waiver is valid even without disclosure, so long as it is in writing and signed. (Florida’s separate body of contract law on fraud, duress, and unconscionability still applies, so a one-sided agreement signed under pressure can be attacked on those grounds.)
For a physician entering a second marriage who wants to preserve assets for children from a first marriage, a properly drafted prenuptial agreement with an explicit elective-share waiver is the single most effective protection. Vague language will not do it; the waiver should track the statutory rights by name.
2. The Elective-Share Trust
Rather than handing the spouse 30% outright, the decedent can fund an elective-share trust that satisfies the obligation while controlling how the assets are ultimately used. Under § 732.2025 and § 732.2095, property in a qualifying trust — one giving the spouse the income for life and meeting the statutory conditions — counts toward satisfying the share at a defined value. This lets you give the surviving spouse a stream of support during their lifetime while directing the remainder to your children, a structure especially valuable when remarriage or creditor exposure is a concern. This is the same conceptual machinery behind life-estate and retained-interest planning; our New York colleagues describe the residential version of this approach in their overview of , and the trust-drafting fundamentals carry over.
3. Lifetime Gifting Outside the One-Year Window
Because § 732.2035 pulls back uncompensated transfers made within one year of death (and certain retained-interest transfers regardless of timing), a disciplined lifetime gifting program executed well in advance can shrink the elective estate. This is a long-horizon strategy, not a deathbed maneuver, and it must be coordinated with federal gift-tax planning. It is also the area where amateurs get burned: a transfer that “retains the right to income” or a revocable arrangement gets clawed right back in.
Common Mistakes I See in Palm Beach Estate Plans
- Assuming a revocable trust dodges the share. It does not — revocable trust assets are squarely in the elective estate.
- Relying on a beneficiary designation to disinherit. Joint accounts, POD/TOD designations, and life insurance cash value all count.
- Using a generic out-of-state prenup. A waiver that does not invoke Florida’s statutory rights by name invites litigation. Florida law controls a Florida domiciliary’s elective share.
- Ignoring the deadline. Surviving spouses forfeit the right by inaction more often than by any planning the decedent did.
- Treating the will as the whole plan. A Florida will is one instrument; the elective share looks at the entire augmented estate.
Why This Matters for Physicians and Professionals
High earners tend to hold wealth in exactly the vehicles the elective estate is designed to capture: funded revocable trusts, sizable retirement plans, cash-value insurance, and jointly titled investment accounts. A surgeon who builds an asset-protection structure for malpractice exposure may inadvertently leave the surviving-spouse question unaddressed, only for the 30% claim to cut across the entire plan. The fix is coordination — the marital agreement, the trust structure, and the beneficiary designations all have to point the same direction.
If your wealth or family ties cross state lines, the analysis multiplies. New York, for example, fixes its own spousal right of election at roughly one-third of the net estate under EPTL 5-1.1-A, with its own augmented-estate rules; the drafting team at Morgan Legal addresses how a interacts with those rights. For Florida-domiciled clients with Florida property, our Florida coordinate the in-state strategy. And if you want to understand how the elective share interacts with administration of the estate itself, review our overview of Florida probate.
The Bottom Line
Florida’s elective share is not a loophole and it is not optional in the sense most people hope. It is a deliberate, augmented-estate-based guarantee that a surviving spouse receives 30% of nearly everything. You can plan around it — through a valid § 732.702 waiver, a qualifying elective-share trust, or disciplined lifetime gifting — but only with precise drafting that names the statutory rights and respects the one-year and retained-interest rules. Whether you are trying to protect your spouse or honor a different distribution, the worst plan is the one that assumes the share simply won’t apply.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s elective estate under Fla. Stat. § 732.2065. The elective estate is broad and includes the probate estate plus revocable trust assets, joint and POD/TOD accounts, the cash surrender value of life insurance, retirement accounts, and certain transfers made within one year of death.
Can a spouse waive the Florida elective share?
Yes. Under Fla. Stat. § 732.702 a spouse can waive the elective share (and homestead, exempt property, and family allowance) in a signed written agreement, before or after marriage. A prenuptial waiver is valid even without financial disclosure, though it can still be challenged for fraud, duress, or unconscionability.
What is the deadline to claim the elective share in Florida?
Under Fla. Stat. § 732.2135, the surviving spouse must file the election by the earlier of six months after service of the notice of administration, or two years after the date of death. Missing the deadline generally forfeits the right, so a surviving spouse should consult counsel immediately upon receiving the notice.
Does a revocable living trust avoid the elective share?
No. Revocable trust assets are expressly included in the elective estate under Fla. Stat. § 732.2035, so funding a living trust does not shield assets from a surviving spouse’s 30% claim. Joint accounts, beneficiary designations, and life insurance cash value are also counted.
Can I leave my spouse a trust instead of paying 30% outright?
Often yes. A qualifying elective-share trust under Fla. Stat. §§ 732.2025 and 732.2095 — typically giving the spouse income for life — can count toward satisfying the elective share at a defined value, letting you support the spouse during their lifetime while directing the remainder to other beneficiaries such as children from a prior marriage.
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