Florida Elective Share: Protecting or Planning Around a Surviving Spouse

The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” no matter what the will or trust says. Codified in Florida Statutes Chapter 732, Part II (§§ 732.201–732.2155), it exists to keep one spouse from disinheriting the other. For blended families and second marriages, it is the single most overlooked landmine in an otherwise tidy estate plan.

I have sat across the table from too many surviving second spouses who assumed they were protected, and too many adult children who assumed Dad’s trust would pass straight to them. Both were surprised. This article explains how the elective share actually works under Florida law, what gets pulled into the calculation, and the legitimate ways a couple can plan around it before anyone passes.

What Is the Florida Elective Share?

When a person dies domiciled in Florida, the surviving spouse may choose to take a 30% share of the elective estate instead of whatever the decedent left them under a will, a revocable trust, or by simply leaving them out altogether. The right is found in Fla. Stat. § 732.201, and the 30% figure is fixed by § 732.2065.

The key word is elective. Nobody is forced to take it. A surviving spouse who was generously provided for usually keeps what the plan already gives them. But if a spouse was cut out, shortchanged, or left only assets that are illiquid or burdensome, the elective share becomes a powerful backstop. The election must be made through a formal court filing, and the deadlines are strict.

Why Florida Has It

Florida is not a community property state. Without an elective share, a husband could leave a 40-year marriage’s worth of assets to a friend, a charity, or children from a prior marriage and leave his widow with nothing. The Legislature decided that was an unacceptable result. The elective share is the policy compromise: the surviving spouse cannot be fully disinherited, but the decedent keeps broad freedom to direct the other 70%.

What Counts Toward the Elective Estate

This is where most people, and frankly some attorneys, get it wrong. The 30% is not calculated on the probate estate alone. Florida deliberately casts a wide net under Fla. Stat. § 732.2035 so that a spouse cannot dodge the rule by moving assets out of probate. The elective estate includes, among other things:

• Property passing through probate under the will or by intestacy
• The decedent’s revocable (living) trust assets
• Pay-on-death and transfer-on-death accounts
• Jointly held property and survivorship accounts, to the extent of the decedent’s contribution
• The net cash surrender value of life insurance on the decedent’s life owned by the decedent
• Certain retirement and pension benefits
• Property transferred within one year of death without adequate consideration

In other words, the classic “I’ll just put everything in a living trust so it skips probate” strategy does not defeat the elective share. The trust assets are counted. So are the POD accounts that people set up at the bank thinking they had quietly handled things. If you want to understand how trusts and other non-probate transfers interact with these rules, our overview of Florida wills and trusts is a useful companion read.

What Is Generally Excluded

Not everything is swept in. Property the surviving spouse already received, irrevocable transfers made well before death for full value, and certain protected-homestead interests are treated separately. Homestead, in particular, has its own constitutional rules that run alongside (and sometimes ahead of) the elective share, which is one of the reasons Florida estate planning is rarely a do-it-yourself project.

How the Elective Share Gets Satisfied

Once the elective estate is valued, the 30% amount is funded according to a statutory waterfall in §§ 732.2075–732.2085. Assets already passing to the spouse are credited first; then property in the probate estate and trust is tapped to make up the rest. There is even a mechanism for an “elective share trust,” where assets placed in a qualifying trust for the surviving spouse can count toward the obligation rather than requiring an outright transfer.

For blended families, that elective-share-trust provision is gold. It can let a husband leave assets in trust that benefit his second wife for life, then pass the remainder to his children from his first marriage, while still satisfying his legal duty to the spouse. It is a planning lever, not just a defensive rule.

Deadlines: The Election Will Not Wait for You

Timing is brutal and unforgiving here. Under Fla. Stat. § 732.2135, the surviving spouse must file the election within the earlier of:

1. Six months after being served with a copy of the notice of administration, or
2. Two years after the decedent’s date of death.

Extensions are possible in limited circumstances, but they are not guaranteed and require prompt action. I have watched grieving spouses lose six-figure rights simply because nobody told them the clock was running. If your spouse has recently died and you suspect you were under-provided for, this is not a decision to “think about over the holidays.” Speak with a probate attorney quickly, and read more about the mechanics of Florida probate administration so you understand what notices you should be receiving.

Planning Around the Elective Share in a Second Marriage

Here in the Keys, second and third marriages are common, and so are the tensions that come with them. One spouse wants to provide for the survivor; the other wants to protect children from a prior relationship. The elective share is the rule both sides keep bumping into. The good news is that Florida gives couples several legitimate tools to plan around it, provided they act before death and act voluntarily.

1. A Valid Spousal Waiver

Under Fla. Stat. § 732.702, a spouse can waive the elective share entirely, in whole or in part, through a written agreement signed in the presence of two witnesses. This is the cleanest path for many second marriages. A waiver can be part of a prenuptial agreement signed before the wedding, or a postnuptial agreement signed after. Before marriage, no financial disclosure is technically required for the waiver to be valid; after marriage, fair disclosure of assets is required. Get the formalities wrong and the waiver collapses, so this is precisely the kind of document you do not want pulled off a website template.

2. Fund the Spouse Voluntarily and Generously

The simplest way to “plan around” the elective share is to make sure the surviving spouse already receives at least 30% in a form they will not want to challenge. If the plan provides for them well, they have no incentive to elect. Life insurance, a marital trust, and a paid-off residence can quietly satisfy the obligation while still steering the remainder to the children.

3. Use an Elective Share Trust or QTIP-Style Marital Trust

A properly drafted marital trust can give the surviving spouse income for life, keep them comfortable, and preserve the underlying principal for the decedent’s chosen remainder beneficiaries. This is the heart of blended-family planning. Combined with retained-life-estate and home-transfer strategies, it lets a couple keep the family home available to the survivor while protecting the children’s ultimate interest. Morgan Legal’s planners use these tools constantly; their work on illustrates how a residence can be handled across two generations without triggering a fight.

4. Timing of Lifetime Transfers

Because transfers within one year of death can be pulled back into the elective estate, lifetime gifting must be done thoughtfully and well in advance. Rushed deathbed transfers tend to backfire. Done early and for legitimate reasons, gifting and asset retitling can reduce the elective estate before the rule ever attaches.

When You Are the Surviving Spouse

If you are the survivor, the analysis flips. Your job is to figure out whether electing your 30% leaves you better off than the plan as written. Sometimes it does not, because the will already gives you the homestead and a generous bequest. Sometimes it absolutely does, especially when a revocable trust was used to route assets to stepchildren and you were handed only a small probate gift. Run the numbers with counsel before you sign anything or accept any distribution.

Special-needs and income-sensitive survivors have an extra layer to consider. A direct elective-share payout can disqualify someone from means-tested benefits, which is exactly the problem that supplemental and pooled-income trusts are designed to solve. Morgan Legal’s New York team explains the mechanics well in their guide to the , and the same protective logic applies when structuring a Florida spouse’s share. If you have questions specific to a Florida estate, our colleagues at handle these elections regularly.

Common Mistakes I See

• Assuming a living trust beats the elective share. It does not. Trust assets are counted.
• Relying on an out-of-state prenup without confirming Florida formalities. The waiver provisions in § 732.702 are specific.
• Missing the election deadline. Six months from the notice of administration moves fast during grief.
• Forgetting homestead. Florida’s constitutional homestead protections interact with, and sometimes override, the elective-share math.
• Treating the spouse and the children as an either/or. A well-built marital trust usually serves both.

The Bottom Line for Blended Families

The Florida elective share is not a trap so much as a rule of the road. It guarantees a surviving spouse a meaningful share, and it gives couples clear, lawful ways to plan around it when their wishes are more complicated than “everything to you.” In a second marriage, the worst outcome is silence: a plan drafted as if the elective share did not exist, discovered only after death, when it is too late to fix. Talk it through while everyone is alive, document the agreement properly, and the law becomes a framework you control rather than a surprise your family litigates.

If you are getting remarried, blending families, or wondering whether your current plan would survive an elective-share claim, contact our Key West estate planning team for a focused review.

Frequently Asked Questions

How much is the Florida elective share?

The Florida elective share is 30% of the decedent’s elective estate, as set by Fla. Stat. § 732.2065. The elective estate is broader than the probate estate and includes revocable trust assets, pay-on-death accounts, certain joint property, and life insurance, so the 30% is calculated on a much larger pool than many people expect.

Can a living trust avoid the elective share in Florida?

No. Florida deliberately includes revocable (living) trust assets in the elective estate under Fla. Stat. § 732.2035. Routing assets through a living trust to skip probate does not defeat a surviving spouse’s elective share. The trust property is counted just like probate property when calculating the 30%.

Can a spouse waive the Florida elective share?

Yes. Under Fla. Stat. § 732.702, a spouse may waive the elective share, in whole or in part, through a written agreement signed in the presence of two witnesses. This is commonly done in a prenuptial or postnuptial agreement. Before marriage no financial disclosure is required; after marriage, fair disclosure of assets is necessary for the waiver to hold up.

What is the deadline to claim the elective share?

A surviving spouse must file the election within the earlier of six months after being served with the notice of administration, or two years after the decedent’s date of death (Fla. Stat. § 732.2135). Limited extensions exist, but missing the deadline generally forfeits the right, so prompt legal advice is essential.

How does the elective share work in a second marriage or blended family?

It can conflict with a desire to leave assets to children from a prior marriage. Florida allows planning around it through a valid spousal waiver, voluntary provision of at least the 30% share, or an elective-share or marital trust that gives the surviving spouse income for life while preserving the remainder for the decedent’s children. Acting before death and documenting agreements properly is key.