The Florida elective share is a statutory right that allows a surviving spouse to claim 30% of the deceased spouse’s “elective estate” — regardless of what the will says — under Florida Statutes Chapter 732, Part II. It exists so a married person cannot disinherit a spouse entirely. For couples who own property in more than one state, or who recently relocated to Florida, this single rule can quietly override years of careful estate planning.
If you split your life between New York and Florida, or you own a Miami condo while keeping your legal residence up north, the elective share deserves a hard look. Below is a plain-English breakdown of how it works, what counts, and the lawful ways spouses either lean on it for protection or plan around it.
What Is the Florida Elective Share?
The elective share is found at Florida Statutes §§ 732.201–732.2155. In short: when a married Florida resident dies, the surviving spouse may “elect” to take 30% of the elective estate instead of whatever the deceased spouse left them by will, by trust, or by default. The election is a choice, not an automatic distribution — the survivor (or their agent or guardian) has to affirmatively file for it within strict deadlines.
The point is policy, not punishment. Florida, like most states, treats marriage as an economic partnership. A spouse who builds a life with someone should not be cut out at death by a stale will, a vindictive amendment, or assets quietly funneled into a trust. The elective share is the legislature’s backstop against exactly that.
Elective Share vs. Homestead and Other Spousal Rights
The elective share is only one of several overlapping protections Florida gives a surviving spouse. It is easy to confuse them, but they operate independently:
- Homestead rights (Fla. Const. Art. X, § 4): A surviving spouse has a protected interest in the decedent’s Florida homestead, separate from the elective share. Homestead cannot be devised away from a spouse or minor child except in narrow circumstances.
- Exempt property (§ 732.402): The spouse can claim up to $20,000 in household furnishings, two vehicles, and certain other items off the top.
- Family allowance (§ 732.403): Up to $18,000 to support the spouse and dependents during administration.
- Pretermitted spouse (§ 732.301): If the will predates the marriage and was never updated, the spouse may take an intestate share.
A surviving spouse often stacks several of these. The elective share is the largest and most litigated of them, but it does not cancel out homestead or exempt-property claims — a spouse can pursue them together.
Who Can Claim It — and Who Cannot
The elective share belongs to a surviving spouse of a person who dies domiciled in Florida. That domicile requirement is the hinge that catches dual-state couples off guard.
Domicile is not the same as where you own real estate. It is where you intend your permanent home to be — measured by your driver’s license, voter registration, where you file resident income tax, your declaration of domicile, and the totality of your conduct. A New Yorker who buys a Brickell condo but keeps New York domicile generally falls under New York’s spousal-share rules for the overall estate, not Florida’s elective share, even though the Florida property still goes through Florida ancillary probate.
This matters because New York and Florida treat the surviving spouse differently. New York’s “right of election” under EPTL 5-1.1-A gives a spouse the greater of $50,000 or one-third of the net estate — a different fraction, a different asset base, and different planning levers. If you are juggling homes and residency in both states, you need to know which regime actually governs. Our New York colleagues at Morgan Legal address related questions in their overview of , which is a useful comparison point for anyone weighing how a deeded interest interacts with spousal rights up north.
When the Right Can Be Lost or Waived
A spouse will not receive the elective share if any of the following applies:
- The marriage was not valid, or the parties were already divorced at death.
- The spouse waived the right in a valid prenuptial or postnuptial agreement (§ 732.702). A written waiver, signed by the spouse, is fully enforceable and — for prenuptial agreements — does not even require financial disclosure.
- The deceased spouse’s interest passed entirely to the survivor anyway, so there is nothing to elect against.
- The deadline to file the election has passed.
How the 30% Is Calculated: The “Elective Estate”
Here is where many people miscalculate. The 30% is not 30% of the probate estate. Florida deliberately casts a wide net through the “elective estate” defined in § 732.2035 — an augmented estate designed to capture assets a spouse might otherwise shift out of reach.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in protected homestead.
- Pay-on-death and transfer-on-death accounts, and most jointly held property (the decedent’s fractional interest).
- The net cash surrender value of life insurance on the decedent’s life.
- The decedent’s interest in retirement plans and pension benefits.
- Property in revocable (living) trusts — yes, including the classic “I’ll just put everything in a trust” maneuver.
- Certain transfers made within one year of death and transfers where the decedent retained control.
The lesson: in Florida you cannot defeat the elective share simply by retitling assets, naming a different beneficiary, or pouring everything into a revocable trust. The statute follows the value. This is one of the most common and expensive misunderstandings I see from clients who move down from states with narrower spousal-share rules.
A Quick Illustration
Suppose a Miami decedent dies with a $400,000 probate estate, a $600,000 condo held in a revocable trust, and a $200,000 POD bank account left to a child from a prior marriage. The elective estate is roughly $1.2 million. The surviving spouse’s elective share would be about $360,000 — even if the will and trust left the spouse far less. The condo and the POD account get pulled into the math whether the decedent intended it or not.
Deadlines and Procedure — Do Not Miss the Window
The election is governed by tight timing under § 732.2135. The surviving spouse must file the election with the probate court by the earlier of:
- Six months after being served with the notice of administration, or
- Two years after the decedent’s death.
A 30-day extension is possible if requested before the deadline runs, but courts are not generous past that. Miss the window and an otherwise valid claim evaporates. Once filed, the share is satisfied from contributing assets according to a statutory order of abatement, and the spouse may be entitled to have the share held in a qualifying elective-share trust rather than paid outright.
Planning Around the Elective Share (Lawfully)
For blended families, second marriages, and spouses who agreed long ago to keep finances separate, the goal is often to limit what the survivor takes — without inviting a lawsuit. There are legitimate tools to do that.
1. Marital Agreements
A properly drafted and executed prenuptial or postnuptial agreement waiving elective-share rights is the cleanest, most durable solution. Under § 732.702, the waiver must be in writing and signed by the waiving spouse. For a prenup signed before marriage, no financial disclosure is required; for a postnup, fair disclosure (or a written waiver of it) is needed. This is the single most effective planning device available.
2. Funding the Share With a Trust Interest
The statute permits the elective share to be satisfied, in part, by placing assets into a qualifying elective-share trust that pays the spouse for life. This lets a client provide income to a surviving spouse while ultimately directing principal to children from a prior marriage — a frequent goal in second-marriage planning.
3. Domicile Planning for Dual-State Couples
Because the elective share keys off Florida domicile, where you are legally domiciled is itself a planning decision. A couple who maintains New York domicile is governed by New York’s right of election, not Florida’s 30% augmented-estate rule. Neither regime is automatically “better” — the right answer depends on asset mix, tax exposure, and family goals. Coordinating a valid will across both states is essential; Morgan Legal’s discussion of a pairs naturally with a Florida plan for snowbirds who execute documents in both jurisdictions.
4. Lifetime Gifting — With Caution
Outright gifts made more than one year before death generally fall outside the elective estate. But timing and retained-control rules are unforgiving, and aggressive deathbed transfers are exactly what § 732.2035 is built to claw back. This strategy works only when done early, deliberately, and with documentation.
Planning To Protect a Surviving Spouse
The flip side is just as important. If your priority is making sure your spouse is cared for, you can build a plan that satisfies — and exceeds — the elective share while still controlling where assets ultimately land. Common protective moves include:
- Leaving the spouse a marital share at least equal to 30% of the elective estate, removing any incentive to litigate.
- Using a marital (QTIP-style) trust to provide lifetime income while preserving the homestead and protecting children’s inheritance.
- Coordinating beneficiary designations on life insurance and retirement accounts so they reinforce, rather than undercut, the plan.
- Confirming homestead title is held in a way that secures the spouse’s constitutional rights.
Florida’s homestead and elective-share rules interact in ways that surprise even experienced out-of-state advisors. A clean, coordinated plan — drafted by counsel who handles Florida probate every week — keeps your wishes intact and your family out of court. You can review how a Florida-focused practice approaches these issues through Morgan Legal’s .
Common Mistakes That Wreck the Plan
- Assuming a revocable trust defeats the share. It does not. Trust assets are squarely inside the elective estate.
- Treating Florida property as if Florida law governs the whole estate. Domicile, not property location, usually decides which spousal-share regime applies.
- Relying on an old out-of-state will. A will valid where signed is generally valid in Florida, but it may not address homestead, elective share, or Florida-specific personal representative rules.
- Forgetting beneficiary designations. POD/TOD accounts and insurance pass outside the will but still count toward the share — and still need to align with the plan.
- Letting the election deadline lapse. Surviving spouses lose valid claims every year simply by waiting.
When to Call an Estate Planning Attorney
If you are in a second marriage, own real estate in more than one state, recently moved to or from Florida, or want to be certain your spouse is protected (or that your children are), the elective share should be addressed deliberately — not left to chance. The interplay between domicile, homestead, augmented-estate inclusion, and strict deadlines is too consequential to guess at.
Our Miami estate planning team helps out-of-state owners and dual-state residents build plans that hold up across jurisdictions. Start with our Florida probate overview, learn how a Florida-valid will fits into the picture, and then contact us to map out a strategy tailored to your family and your property.
Frequently Asked Questions
What percentage is the Florida elective share?
A surviving spouse may claim 30% of the deceased spouse’s elective estate under Florida Statutes § 732.2065. The elective estate is an augmented figure that includes the probate estate plus homestead, jointly held and POD/TOD accounts, life insurance cash value, retirement plans, and revocable trust assets — so it is usually far larger than the probate estate alone.
Can a revocable living trust avoid the Florida elective share?
No. Florida deliberately includes revocable (living) trust assets in the elective estate under § 732.2035. Moving property into a revocable trust does not shield it from a surviving spouse’s 30% elective-share claim. The most reliable way to limit the share is a valid prenuptial or postnuptial waiver.
Does the elective share apply if I live in New York but own a Miami condo?
Generally no. The Florida elective share applies when the deceased spouse was domiciled in Florida. If you keep New York domicile, New York’s right of election (the greater of $50,000 or one-third of the net estate) typically governs, even though the Florida condo still passes through Florida ancillary probate. Domicile, not property location, controls.
How long does a surviving spouse have to claim the elective share?
The election must be filed with the probate court by the earlier of six months after being served with the notice of administration, or two years after the decedent’s death (Fla. Stat. § 732.2135). A 30-day extension may be requested before the deadline, but missing the window forfeits the claim.
Can a spouse waive the right to a Florida elective share?
Yes. Under Fla. Stat. § 732.702, a spouse can waive the elective share in a written agreement — typically a prenuptial or postnuptial agreement. A prenuptial waiver does not require financial disclosure; a postnuptial waiver requires fair disclosure or a written waiver of it. A valid waiver is fully enforceable.
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