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. It exists so that a married Floridian cannot quietly disinherit a husband or wife. Codified in Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), it reaches far beyond the probate estate to capture trusts, certain joint accounts, and even some lifetime transfers.
If you own a home in Boca Raton, a condo in Aventura, or a waterfront lot in the Keys and you are doing any serious estate planning, the elective share is one of the few rules in Florida law you genuinely cannot draft your way out of without your spouse’s cooperation. Here is how it works, what it grabs, and how thoughtful South Florida couples plan around it on purpose.
What the Florida elective share actually guarantees
Florida is not a community property state. We are a separate-property, common-law state, which means each spouse owns what is titled in their name. Left alone, that rule would let a wealthy spouse leave everything to children from a prior marriage, a charity, or a new flame. The elective share is the legislature’s counterweight.
Under section 732.2065, the elective share equals 30% of the elective estate. The surviving spouse must affirmatively elect it; if they do nothing, it does not happen automatically. The election is a deliberate act with a hard deadline, and that is where a lot of grieving spouses lose the right entirely.
A few foundational points worth fixing in your mind:
- It is a floor, not a cap. If the will already leaves the spouse half the estate, electing 30% would be foolish. The right only matters when the spouse was left less than the statute promises.
- It is the surviving spouse’s choice alone. Children and other beneficiaries cannot force or block it. A duly appointed agent or guardian can sometimes elect on an incapacitated spouse’s behalf, but that requires court involvement.
- It can be waived in advance. A valid prenuptial or postnuptial agreement under section 732.702 can give it up entirely.
The deadline that quietly destroys the right
The election must be filed with the court within the earlier of (a) six months after service of the notice of administration, or (b) two years after the decedent’s death. Miss it, and 30% evaporates. I have sat across from surviving spouses who assumed the lawyer “handling the estate” was protecting them. That lawyer represents the personal representative, not the widow. If you are a surviving spouse and you were left less than you expected, you need your own counsel measured in weeks, not months. Start with a consultation before that six-month clock runs.
What goes into the “elective estate”
This is where Florida’s statute earns its reputation. The elective estate is not just the probate estate. Section 732.2035 sweeps in a long list of assets that people commonly assume are “outside” the estate and therefore safe from a spouse’s claim. They are not.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s beneficial interest in a revocable (living) trust.
- Pay-on-death and transfer-on-death accounts, and the decedent’s portion of joint accounts and joint tenancy property with right of survivorship.
- The net cash surrender value of life insurance the decedent owned on their own life, immediately before death.
- The decedent’s interest in pension, retirement, and similar plans (with specific valuation rules and some ERISA-preemption wrinkles).
- Property transferred within one year of death, and certain transfers in which the decedent kept the right to income or the power to revoke or revest the principal.
That last category is the trap. A common scheme is to gift the house or a brokerage account away shortly before death, or to title everything in a revocable trust, believing the spouse is cut out. The clawback provisions in section 732.2035 are specifically designed to defeat that. Revocable trusts, in particular, offer zero protection against the elective share because the decedent kept control until death.
The 2026 reality for homestead owners
For our real-estate-heavy South Florida readers, the homestead is the headline asset, and it gets special treatment. Florida homestead is governed by both the constitution (Article X, Section 4) and statute, and it does not simply fall into the elective estate at full value. Instead, section 732.2095 prescribes how protected homestead is valued and credited.
The interplay between homestead, the elective share, and the spouse’s separate homestead rights under section 732.401 is genuinely one of the most litigated, counterintuitive corners of Florida probate. In short: a surviving spouse who is left the homestead may take it as a life estate or, by timely election under 732.401, take an undivided one-half interest as tenant in common with the descendants. How that homestead value counts toward the 30% is a calculation that turns on which option is chosen. This is not a DIY area. The value of the roof over the survivor’s head, and whether it satisfies or supplements the elective share, depends on choices made within months of the death.
Planning around the elective share (the right way)
“Planning around” does not mean cheating a spouse. It means structuring an estate so the elective share is satisfied predictably, or waived knowingly, without forcing a contested probate. There are four legitimate roads.
1. The marital agreement
The cleanest tool is a prenuptial or postnuptial agreement that waives the elective share under section 732.702. For a Florida waiver to stick, it must be in writing, signed, and, if executed after marriage, supported by fair disclosure of assets. This is the standard move in second marriages where each spouse wants their own children protected. A well-drafted waiver is also the only way to make a revocable-trust-based plan reliable against a spouse, because, again, the trust alone does nothing.
2. The elective share trust
Section 732.2025 recognizes an “elective share trust.” If you leave the qualifying 30% in a properly structured trust that pays the spouse income for life and gives them limited access to principal, you can satisfy the elective share and keep ultimate control over where the assets go when the spouse later dies. This is the workhorse for blended families: the surviving spouse is provided for, the kids from the first marriage inherit the remainder, and nobody has to litigate. The drafting is technical, and the trust must meet the statute’s specific requirements to count.
3. Funding the share with the right assets
How the elective share gets satisfied matters too. Section 732.2075 sets an order of who contributes to the spouse’s 30%, and it lets the decedent’s plan direct that certain assets be used first. Coordinating beneficiary designations, life insurance, and the homestead so the math lands on 30% intentionally, rather than by accident, is the difference between a smooth administration and a two-year fight.
4. Lifetime gifting with the one-year window in mind
Because transfers within one year of death are clawed back, gifting strategies only work as planned when they are done early and for genuine, documented reasons. Deathbed transfers of the homestead or the brokerage account are precisely what the statute defeats. Out-of-state property and multi-jurisdiction families add another layer; a New York apartment held by a Florida resident, for example, raises questions our colleagues handle in matters like , where retained-interest planning carries its own clawback consequences.
Common mistakes I see in South Florida estates
- Assuming a revocable trust hides assets from the spouse. It does not. The trust is fully inside the elective estate.
- Relying on POD and joint accounts to disinherit. Those are swept in too, often to the family’s shock.
- Ignoring the homestead’s special rules. The survivor’s homestead election under 732.401 can override the will entirely.
- Letting the will do nothing about the share. A bare that leaves the spouse nothing simply invites an elective-share claim. The will should affirmatively address the share, even if only to direct how it is funded.
- Missing the election deadline. The single most preventable, and most permanent, loss of a right in Florida probate.
If you are doing your planning from scratch, the documents matter as much as the strategy. Make sure your will and supporting documents are drafted to coordinate with beneficiary designations and your trust, not fight them.
When to bring in a Florida estate attorney
Two situations call for counsel immediately. First, if you are creating or updating an estate plan in a marriage, especially a second marriage with children on either side, the elective share has to be designed in from day one, not bolted on later. Second, if you are a surviving spouse who feels shortchanged, the clock is already running and the personal representative’s lawyer is not on your side.
Our firm handles these matters across South Florida, and our broader estate planning practice is described at the . The elective share is one of the few places in Florida law where good drafting and a knowing waiver can save a family from years of probate conflict, and where doing nothing almost guarantees it.
Frequently Asked Questions
How much is the Florida elective share?
The Florida elective share equals 30% of the decedent’s elective estate under Florida Statutes section 732.2065. The surviving spouse must affirmatively elect it; it is not awarded automatically.
Does a revocable living trust avoid the elective share in Florida?
No. A revocable (living) trust is included in the elective estate under section 732.2035 because the decedent retained control until death. Trusts do not shield assets from a spouse’s elective-share claim. Only a valid marital-agreement waiver or a qualifying elective share trust addresses it.
What is the deadline to elect the Florida elective share?
The election must be filed within the earlier of six months after service of the notice of administration or two years after the decedent’s death. Missing this deadline permanently forfeits the right, so a surviving spouse should consult their own attorney quickly.
Can a spouse waive the elective share in Florida?
Yes. Under section 732.702, the elective share can be waived in a written prenuptial or postnuptial agreement. A postnuptial waiver generally requires fair and reasonable disclosure of assets to be enforceable.
Is the Florida homestead part of the elective estate?
The homestead receives special treatment under section 732.2095 and is not simply counted at full value. A surviving spouse may also have separate homestead rights under section 732.401, including the option to take a one-half tenant-in-common interest, which affects how the home counts toward the 30%.
