You can disinherit almost anyone in Florida — but not your spouse. The state guarantees a surviving husband or wife a minimum slice of the estate no matter what the will says. For Miami couples, especially in second marriages or blended families, understanding the elective share is essential before you sign any plan. Here is how it works, what it covers, and the timeline to claim it.
What the Elective Share Is
Under Florida Statutes §732.2065, a surviving spouse is entitled to 30% of the elective estate. This is a protection against being cut out: if a deceased spouse’s will leaves the survivor less than 30%, the survivor can elect to take the statutory share instead. It does not matter whether the marriage lasted decades or months — the right attaches at the moment of death.
The Elective Estate Is Bigger Than You Think
A common Miami misconception is that the elective share applies only to probate assets. In fact, the elective estate (§732.2035) is deliberately broad. It reaches the probate estate plus many non-probate transfers: revocable trust assets, certain pay-on-death and joint accounts, the net cash value of life insurance on the decedent, and some property transferred shortly before death. The law is designed so a spouse cannot simply move everything into a trust or POD account to dodge the 30%. This is why drafting around a spouse rarely works without their informed agreement.
Homestead and Family Allowances Stack On Top
Florida’s constitutional homestead protection (Art. X, §4) gives a surviving spouse separate rights in the marital home in Miami-Dade, including a life estate or, by election, a one-half tenancy in common with the descendants. A spouse may also claim the family allowance and exempt personal property. These rights are independent of the elective share — meaning a surviving spouse often receives the home protections plus the 30%.
How to Claim It — and the Deadline
The election is not automatic; the surviving spouse must file it with the court. The deadline is the earlier of six months after service of the notice of administration or two years after the date of death (§732.2135). Miss it, and the right is generally lost. In a formal probate administration through the Miami-Dade Circuit Court, the personal representative must then calculate the elective estate, value the assets, and satisfy the share — a process that can add months when trusts, business interests, or contested valuations are involved.
Cost and Planning Implications
Litigating an elective share — fighting over what belongs in the elective estate — is among the more expensive estate disputes in Miami. The cheaper path is planning ahead. Couples can waive or modify elective-share rights through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure requirements (§732.702). For estate-tax purposes there is nothing to fear from the state — Florida has no estate or inheritance tax — but the elective share is a genuine constraint on how you distribute wealth.
Speak With a Florida Attorney
Whether you are protecting a new spouse, planning around children from a prior marriage, or considering a marital agreement, the elective share rules are technical and the deadlines are strict. Consult a licensed Florida estate planning attorney familiar with Miami-Dade probate to make sure your plan — or your election — holds up.
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