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 revocable trust actually leaves them. It is codified in Florida Statutes sections 732.201 through 732.2155, and it is deliberately hard to dodge: the elective estate reaches far beyond probate assets to capture revocable trusts, certain joint accounts, payable-on-death designations, and even some transfers made in the years before death. For high-net-worth families in Fort Lauderdale and across Broward County, understanding this right is the difference between an estate plan that holds and one that gets unwound in litigation.
I have sat across from both sides of this issue — the spouse who was written out and wants their share, and the planner who wants to honor a prenuptial agreement or protect children from a first marriage. The mechanics matter. Below is a working attorney’s explanation of how the elective share operates in Florida, what assets it counts, and where the legitimate planning room actually exists.
What Is the Florida Elective Share?
Florida does not let you fully disinherit a husband or wife. Under section 732.201, a surviving spouse “has the right to a share of the elective estate of the decedent.” That share is fixed at 30% of the elective estate under section 732.2065. Unlike the homestead and family allowance protections, which serve a different purpose, the elective share is purely an economic floor — a guarantee that the surviving spouse walks away with roughly a third of the couple’s accumulated wealth as the statute defines it.
Two features make Florida’s version unusually powerful. First, it applies whether or not the decedent left a will, and whether or not the assets pass through probate. Second, the definition of the “elective estate” is sweeping. A plan built around the old assumption that “if it’s not in the will, it’s not exposed” will fail here.
Who can claim it, and when
Only a legally married surviving spouse can elect. The election is personal to the spouse, though a guardian or attorney-in-fact may act with court authorization. Timing is strict. Under section 732.2135, the election must be filed by the earlier of (a) six months after service of the notice of administration, or (b) two years after the date of death. Miss the window and the right is generally gone. Extensions exist but are narrow and fact-dependent, which is why a grieving spouse should talk to counsel quickly rather than waiting out the estate.
What Counts in the “Elective Estate”
This is where Florida’s statute does its real work. Section 732.2035 builds the elective estate from a long list of components, not just the decedent’s probate assets. The point is to prevent end-runs through beneficiary designations and trusts. The elective estate generally includes:
- Probate assets — anything passing under the will or by intestacy.
- The decedent’s revocable (living) trust — property the decedent could revoke or amend at death is fully counted.
- Pay-on-death and transfer-on-death accounts, plus Totten trusts and “in trust for” bank accounts.
- The decedent’s share of joint accounts and jointly held property with right of survivorship.
- Net cash surrender value of life insurance on the decedent’s life that the decedent owned at death (note: the death benefit itself is generally not pulled in — only the surrender value).
- Retirement plans and annuities — a portion of the decedent’s interest in qualified plans and similar arrangements.
- Property over which the decedent held a general power of appointment.
- Certain transfers made within one year of death and other transfers where the decedent retained the right to income, possession, or the power to revoke.
Notice what that list does. The traditional “will substitutes” that estate planners use everywhere — beneficiary designations, joint titling, living trusts — are precisely the assets Florida sweeps back in. You cannot quietly retitle the brokerage account into joint name with an adult child and assume the surviving spouse’s 30% shrinks accordingly. The statute anticipates that move.
What is generally excluded
Not everything counts. Property given away outright more than a year before death (without a retained interest) typically falls outside the elective estate. Irrevocable trusts that the decedent did not control and could not benefit from are generally excluded. The proceeds of life insurance beyond cash surrender value are usually out. And property the surviving spouse already receives — including assets passing to the spouse and certain elective-share trusts — gets credited against the 30%, so the spouse is not double-counted.
How the 30% Is Satisfied
The elective share is not necessarily a check for 30% of everything. Florida uses a system of proportional contribution under sections 732.2075 and 732.2145. Assets already passing to the surviving spouse are applied first toward satisfying the share. If those fall short, the remaining liability is allocated among the other recipients of the elective estate — beneficiaries of the trust, joint owners, POD payees — in proportion to what each received. In practice that means a contested election can reach into a child’s inheritance or a trust beneficiary’s distribution, which is exactly why these matters turn into multi-party litigation.
For families with significant or illiquid holdings — closely held businesses, real estate, concentrated stock — the proportional-contribution rules can force awkward outcomes: a sale, a refinance, or a forced buyout to fund a spouse’s claim. Planning ahead, with liquidity earmarked or with an enforceable waiver in place, is far cheaper than fighting it after death.
Planning Around the Elective Share — Lawfully
“Planning around” the elective share does not mean hiding assets. Florida courts see through retained-control transfers, and a fraudulent-transfer attack will undo a clumsy scheme. The legitimate tools are narrower but reliable.
1. The marital agreement: prenup or postnup
The cleanest path is a written waiver. Under section 732.702, a spouse may waive the elective share (and homestead and other rights) in a signed writing. A prenuptial agreement signed before marriage requires only fair disclosure to a limited degree under Florida law; a postnuptial agreement signed during marriage demands full and fair financial disclosure to be enforceable. Done correctly — separate counsel, honest disclosure, no duress — a marital agreement is the most durable way to honor a blended-family plan or protect a business. Done sloppily, it is the first thing the surviving spouse’s lawyer attacks.
2. The elective-share trust (QTIP-style satisfaction)
Florida expressly allows the 30% to be satisfied through a qualifying trust rather than an outright transfer (sections 732.2025 and 732.2095). A properly structured marital trust can give the surviving spouse the income and security the statute requires while keeping the remainder in trust for the children of a prior marriage. This is the workhorse for blended families: the spouse is protected, the bloodline is protected, and the plan survives an election.
3. Irrevocable, no-strings transfers — done early
Because the elective estate reaches revocable trusts and retained-interest transfers, a gift only escapes if it is genuinely complete: irrevocable, no retained income or control, and ideally made well outside the one-year lookback. For wealthy clients this overlaps with broader asset-protection and tax planning. The trust vehicles vary by state and goal — for example, families coordinating Florida and New York affairs sometimes pair Florida planning with New York structures, and our colleagues at Morgan Legal frequently discuss the Medicaid asset protection trust used in New York when long-term-care exposure is part of the picture. The unifying principle is the same in any jurisdiction: irrevocability with no strings is what removes an asset from a spouse’s reach, and that same principle is why a pooled income trust arrangement can shield resources while preserving a benefit stream.
4. Coordinating beneficiary designations and titling
Since POD, TOD, joint, and retirement assets are counted, the answer is not to hide them but to design the whole picture so the spouse’s 30% is satisfied predictably — and so liquidity exists to fund it without forcing a fire sale. A Florida estate-planning attorney can model the elective estate before death and align titling, trusts, and the marital agreement so nothing contradicts. Our Florida estate planning team routinely runs this kind of pre-mortem stress test for high-net-worth clients.
Common Mistakes Fort Lauderdale Families Make
- Assuming a revocable trust avoids the share. It does not. A funded living trust is squarely inside the elective estate.
- Relying on a verbal or handshake “agreement” with a spouse. The waiver must be a signed writing under section 732.702.
- Signing a postnup without full disclosure. Florida holds postnuptial waivers to a stricter disclosure standard than prenups; skip disclosure and the waiver may collapse.
- Last-minute retitling. Transfers within a year of death, and any transfer with retained control, get pulled back in.
- Ignoring liquidity. An estate rich in real estate or a business but poor in cash can be forced to sell to satisfy a spouse’s election.
- Missing the election deadline (spouse’s side). The six-month / two-year window in section 732.2135 is unforgiving.
When to Bring in an Attorney
If you are entering a second marriage with children from a first, if you own a business or concentrated assets, or if you simply want your plan to survive a challenge, the elective share should be addressed head-on while both spouses are living. And if your spouse has died and you suspect the will or trust shortchanged you, the clock is already running — an early consultation preserves the right to elect.
Our firm handles both sides of this in Broward County: building plans that hold up and pursuing or defending elections after death. Learn more about our approach to wills and trusts and Florida probate, or contact our Fort Lauderdale office to discuss your situation.
Frequently Asked Questions
Can I disinherit my spouse in Florida? No. Even with a will leaving everything elsewhere, a surviving spouse can claim 30% of the elective estate unless they validly waived that right by signed agreement.
Does a living trust avoid the elective share? No. Revocable trust assets are explicitly counted in the elective estate under section 732.2035, along with most beneficiary-designated and jointly held property.
How long does a surviving spouse have to elect? The election must be filed by the earlier of six months after service of the notice of administration or two years after the date of death (section 732.2135).
Is the elective share the same as homestead rights? No. Homestead protections, the family allowance, and exempt property are separate spousal rights that exist alongside — and can be combined with — the elective share.
Frequently Asked Questions
Can I disinherit my spouse in Florida?
No. Even if your will leaves everything to others, a surviving spouse in Florida can claim 30% of the elective estate under Florida Statutes section 732.201, unless that right was validly waived in a signed prenuptial or postnuptial agreement.
Does a revocable living trust avoid the Florida elective share?
No. Assets in a revocable living trust are fully counted in the elective estate under section 732.2035, as are pay-on-death accounts, transfer-on-death accounts, jointly held property, and certain retirement and insurance interests. Will substitutes do not escape the share.
How long does a surviving spouse have to claim the 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 date of death. The deadline is strict, so a surviving spouse should consult counsel promptly.
What is the legitimate way to plan around the elective share?
The most reliable tool is a written waiver in a prenuptial or postnuptial agreement under section 732.702. Families can also satisfy the 30% through a qualifying elective-share (marital) trust, and can use genuinely irrevocable, no-retained-control transfers made well before death.
Is the elective share the same as Florida homestead rights?
No. The elective share is a separate economic right from homestead protection, the family allowance, and exempt property. A surviving spouse may be entitled to several of these protections at once.
For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.