What You Should Know About Florida’s Elective Share and Spousal Rights
Estate Planning Attorney in Weston, serving clients in Southwest Ranches, Davie, Pembroke Pines, Cooper City, Sunrise, Miramar, Plantation & Coral Springs
One of the most overlooked aspects of Florida estate planning is the impact of Florida’s elective share laws. Many individuals assume that their will or trust completely controls how assets will be distributed upon death. In reality, Florida law provides significant protections for surviving spouses that can override even the most carefully drafted estate planning documents.
For families in Weston, Southwest Ranches, Cooper City, Pembroke Pines, Sunrise, Plantation, Miramar, Coral Springs, and throughout Broward County, understanding these rights is particularly important for blended families, second marriages, business owners, and individuals with substantial assets.
Without proper planning, a surviving spouse may be entitled to a much larger portion of an estate than intended, potentially disrupting inheritance plans for children and other beneficiaries.
What Is Florida’s Elective Share?
Under Florida Statutes Sections 732.201 through 732.2155, a surviving spouse has the right to claim an elective share equal to 30% of the deceased spouse’s elective estate.
This right exists even if:
- The deceased spouse’s will leaves the surviving spouse nothing.
- The deceased spouse attempted to disinherit their spouse.
- Most assets were transferred into trusts or other non-probate arrangements.
Florida created the elective share to prevent spouses from being unintentionally or intentionally disinherited.
What Assets Are Included in the Elective Estate?
Many people mistakenly believe the elective share only applies to probate assets. In reality, Florida’s elective estate is significantly broader.
Assets that may be included include:
- Probate assets owned solely by the decedent
- Revocable living trust assets
- Jointly owned property with rights of survivorship
- Payable-on-Death (POD) accounts
- Transfer-on-Death (TOD) accounts
- Certain retirement accounts
- Certain life insurance proceeds
- Certain transfers made shortly before death
- Some property over which the decedent retained control or beneficial interests
As a result, simply placing assets into a revocable trust does not automatically eliminate a surviving spouse’s elective share rights.
Why Florida Business Owners and Blended Families Should Pay Attention
Elective share issues commonly arise among:
- Second marriages
- Blended families
- Business owners
- Real estate investors
- High-net-worth individuals
- Families with children from prior relationships
Consider a Weston business owner who intends for his company to pass to his children from a prior marriage. If proper planning is not in place, the surviving spouse may still have a legal claim to a substantial portion of the business value through the elective share.
Similarly, families in Southwest Ranches, Cooper City, Plantation, Miramar, and Coral Springs often own valuable real estate holdings that may become part of the elective estate calculation.
Many estate plans fail not because the documents are poorly drafted, but because elective share rights were never properly addressed.
Can a Spouse Waive Elective Share Rights?
Yes.
Florida law permits spouses to waive elective share rights through:
- Prenuptial agreements
- Postnuptial agreements
Under Florida Statute Section 732.702, a waiver must generally:
- Be in writing
- Be signed voluntarily
- Include appropriate disclosures
- Meet legal requirements for enforceability
For many blended families, a properly drafted prenuptial or postnuptial agreement is one of the most effective tools available to ensure that each spouse’s estate plan is ultimately honored.
Estate Planning Strategies to Address Florida’s Elective Share
Qualified Terminable Interest Property (QTIP) Trusts
A QTIP trust can provide financial support for a surviving spouse while preserving the remaining assets for children or other beneficiaries.
This strategy is frequently used by couples in second marriages who want to balance competing family interests.
Revocable Living Trust Planning
Although revocable trusts remain part of the elective estate, they can still provide structure, probate avoidance, privacy, and asset management benefits when properly coordinated with an overall estate plan.
Beneficiary Designation Reviews
Retirement accounts, life insurance policies, POD accounts, and TOD accounts should be reviewed regularly.
Many elective share disputes arise because beneficiary designations conflict with the overall estate plan.
Lifetime Gifting Strategies
Strategic gifting may help reduce future estate values. However, certain transfers made shortly before death may still be included in the elective estate calculation, making professional guidance essential.
What Happens If a Surviving Spouse Elects to Take Their Elective Share?
When a surviving spouse files an elective share claim:
- The elective estate must be valued.
- Assets are identified and categorized.
- Contributions from beneficiaries may be required.
- Court proceedings may become necessary.
- Estate administration may be delayed.
In many cases, elective share litigation can significantly increase costs and create conflict among family members.
The surviving spouse generally must file the election within the deadlines established under Florida Statute Section 732.2135, typically within six months after service of the Notice of Administration, subject to statutory limitations.
Why Estate Planning Matters in Weston, Southwest Ranches, and Broward County
Many residents of Weston, Southwest Ranches, Cooper City, Pembroke Pines, Sunrise, Plantation, Miramar, and Coral Springs have accumulated substantial wealth through:
- Family businesses
- Investment properties
- Retirement accounts
- Professional practices
- Real estate portfolios
These assets often require sophisticated planning to ensure they pass according to the owner’s wishes.
Florida’s elective share laws can dramatically alter the outcome if proper planning is not completed in advance.
An estate plan should not simply focus on avoiding probate, it should address spousal rights, tax planning, asset protection, beneficiary designations, and family dynamics.
The Bottom Line
Florida’s elective share laws provide powerful protections for surviving spouses. While these laws serve an important purpose, they can also create unintended consequences for families who fail to plan appropriately.
Whether you live in Weston, Southwest Ranches, Pembroke Pines, Cooper City, Sunrise, Plantation, Miramar, Coral Springs, or elsewhere in Broward County, reviewing your estate plan regularly can help ensure your wishes are carried out and reduce the risk of costly disputes.
At Cavalier Law Group, we help individuals, families, business owners, and real estate investors create comprehensive estate plans designed to protect their loved ones and preserve their legacy.
Schedule a Consultation
If you have questions about Florida’s elective share laws, wills, trusts, probate avoidance, or estate planning, contact Cavalier Law Group to schedule a consultation and discuss your family’s goals.
Disclaimer
This article is provided for informational and educational purposes only and should not be construed as legal advice. Reading this article does not create an attorney-client relationship. Every estate planning matter is unique, and laws may change over time. You should consult with a qualified Florida estate planning attorney regarding your specific circumstances before taking or refraining from any legal action.
