24 Mar Understanding Elective Share Rights for Surviving Spouses in Florida

When a loved one passes away, especially a spouse, the emotional burden is often compounded by financial concerns. In Florida, surviving spouses have specific rights when it comes to inheritance, one of which is the elective share. This legal provision ensures that a surviving spouse receives a fair portion of the deceased spouse’s estate, regardless of what may have been specified in the will. In this blog, we’ll break down the key aspects of Florida’s elective share rights, so you can better understand how it might affect you or a loved one.

What Is the Elective Share?

The elective share is a statutory right that allows a surviving spouse to claim a portion of the deceased spouse’s estate. In Florida, the elective share is 30% of the estate, which includes both probate and certain non-probate assets. This provision was created to prevent a surviving spouse from being disinherited or left with an unfairly small portion of the estate.

Why Does the Elective Share Exist?

The primary purpose of the elective share is to ensure financial security for surviving spouses. Without this legal mechanism, it would be possible for someone to create a will that leaves little to nothing for their spouse, which could result in severe financial hardship. Florida law recognizes the importance of protecting surviving spouses from such situations, ensuring they receive a portion of the estate, even if the will suggests otherwise.

What Assets Are Included in the Elective Share?

The elective share doesn’t just include probate assets but also certain non-probate assets that pass outside of the will. These assets may include:

1. Bank Accounts and Brokerage Accounts with payable-on-death designations.
2. Retirement Accounts like 401(k)s and IRAs.
3. Life Insurance Proceeds if payable to someone other than the spouse.
4. Trusts established by the deceased spouse.

It’s important to note that the elective share is calculated from the total value of the deceased spouse’s estate, not just the assets passing through probate.

How to Claim the Elective Share

To claim the elective share, the surviving spouse must take specific legal steps. Under Florida law, the spouse must file an election in the probate court within six months of receiving notice of the administration of the estate, or within two years of the date of the spouse’s death, whichever comes first. If the spouse fails to make this election within the allotted time frame, they may lose the right to claim the elective share.

Once the elective share has been claimed, the personal representative of the estate is responsible for ensuring that the spouse receives the correct portion.

Can a Surviving Spouse Waive the Elective Share?

Yes, it is possible for a surviving spouse to waive their right to the elective share. This waiver is typically made through a prenuptial agreement or postnuptial agreement, where both spouses agree in advance to forgo this right. Waivers must meet specific legal requirements and should be carefully drafted to ensure they are enforceable under Florida law.

Exceptions to the Elective Share

There are some exceptions to the elective share right. For instance:

• If a spouse signed a valid waiver, such as a prenuptial or postnuptial agreement, they may not be entitled to the elective share.
• The elective share only applies to married couples. It does not apply to unmarried partners, even if they were in long-term relationships.

Additionally, the elective share is not automatic. The surviving spouse must affirmatively claim it; otherwise, the estate will be distributed according to the will.

Conclusion: Ensuring Financial Security Through the Elective Share

Florida’s elective share laws provide crucial protections for surviving spouses. By guaranteeing a minimum share of the deceased spouse’s estate, this legal provision helps prevent surviving spouses from being disinherited or left in financial difficulty. However, the process of claiming the elective share can be complex, and time-sensitive.

If you’re a surviving spouse facing questions about your inheritance or want to understand how the elective share might apply to you, consulting with an experienced probate attorney can provide clarity and protect your rights. Whether you’re planning your estate or navigating the probate process after the loss of a spouse, knowing your rights under Florida law is essential.

If you have any questions about elective share rights or estate planning in general, feel free to reach out to Alecia Daniel by calling (772) 539-9831 or visiting https://genesislawpa.com/scheduleaconsultation/  for professional guidance. Our experienced attorney are here to help you protect your interests during this difficult time.