One of the most important things to understand about Florida estate planning is that you cannot completely disinherit your spouse, even if your will says so. Florida law gives a surviving spouse strong protections. If you live in Key West and are planning your estate, or you are a surviving spouse wondering about your rights, here is a plain-English overview.
What Is the Elective Share?
Under Florida law (section 732.2065 and the sections that follow), a surviving spouse can claim an elective share equal to 30% of the deceased spouse’s “elective estate.” The elective estate is broader than just what passes under the will. It can include certain assets that the spouse tried to route around the will, such as some trust assets, jointly held property, payable-on-death accounts, and certain transfers made before death.
In short, if a spouse leaves the survivor far less than 30%, Florida lets the survivor choose to take the elective share instead of what the will provided. It is a floor that protects spouses from being quietly cut out.
Why Florida Designed It This Way
The elective share recognizes that a marriage is an economic partnership. It exists to stop one spouse from leaving the other with little or nothing, whether out of conflict, a second marriage situation, or last-minute changes. Because the elective estate reaches beyond the will, you generally cannot dodge it by simply moving assets into a trust or a joint account.
Homestead Rights on the Key West Home
Separate from the elective share, Florida’s homestead protections under Article X, Section 4 of the state constitution give a surviving spouse powerful rights in the marital home. If the deceased spouse owned a Key West homestead and is survived by a spouse, the spouse generally cannot be left out of the home. Depending on the situation, the surviving spouse may receive a life estate with the children sharing the remainder, or may elect a one-half interest instead. Homestead rules are technical and override conflicting will provisions, so they deserve their own attention.
Deadlines Matter
The elective share is not automatic. The surviving spouse must affirmatively make the election within the deadlines set by Florida law, generally tied to the probate proceedings and the notice of administration. Missing the window can mean losing the right. This is one of many reasons a grieving spouse should get legal guidance promptly rather than waiting.
Can Spouses Waive These Rights?
Yes. Spouses can waive elective share and homestead rights through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure and signing requirements. This is common in second marriages, where each spouse may want to protect children from a prior relationship. A poorly drafted waiver can be challenged, so these agreements need to be done correctly.
What This Means for Your Plan
If you are planning around a blended family in Key West, the elective share and homestead rules shape what is actually possible. You can still provide for children from a prior marriage, but you have to plan with the spouse’s protected rights in mind rather than ignoring them.
Talk With a Florida Attorney
The elective share, homestead, and waiver rules are among the most technical areas of Florida estate law, and the deadlines are unforgiving. Whether you are planning your estate or you are a surviving spouse in the Key West area, speak with a licensed Florida estate planning attorney before acting. This article is general information, not legal advice.
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