The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or revocable trust actually says. It exists so a spouse cannot be quietly disinherited, and it reaches far beyond probate assets to capture trusts, jointly held property, certain retirement accounts, and even some transfers made before death. For Miami physicians and professionals with layered estate plans, the elective share is the single most overlooked threat to a carefully drafted distribution scheme.
I have watched well-organized estate plans unravel in probate because the planning ignored Chapter 732 of the Florida Statutes. A surgeon leaves the bulk of his estate to children from a first marriage, assuming his funded revocable trust sits safely “outside” the reach of his second spouse. It does not. Below is how the elective share actually operates, what it captures, and how to plan with it instead of against it.
What is the Florida elective share?
The elective share is governed by Florida Statutes sections 732.201 through 732.2155. A surviving spouse who is intentionally or accidentally left less than a statutory minimum can elect to take 30% of the elective estate instead of whatever the estate plan provides. The right belongs to the spouse alone, and it must be affirmatively exercised, it is not automatic.
Two points trip people up. First, the percentage is fixed at 30%, no sliding scale based on length of marriage. A six-month marriage and a thirty-year marriage produce the same fraction. Second, the share is measured against the elective estate, a defined and deliberately broad pool, not just the assets that pass through the will.
Who can elect, and the deadlines that matter
Only a surviving spouse (or, in limited circumstances, an attorney-in-fact or guardian acting on the spouse’s behalf) may make the election. Under section 732.2135, the election generally must be filed within the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the window and the right evaporates. These deadlines are jurisdictional in practice, so a spouse who is considering an election should consult Florida probate counsel quickly rather than waiting for the estate to “settle down.”
What counts in the elective estate
This is where most planning fails. Section 732.2035 defines the elective estate expansively. It is not limited to assets titled in the decedent’s sole name. The pool typically includes:
- The decedent’s probate estate (anything passing under the will or by intestacy).
- The decedent’s interest in property held in a revocable (living) trust, even a fully funded one.
- The decedent’s ownership interest in jointly held and pay-on-death accounts, to the extent of the decedent’s contribution.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Amounts in qualified retirement plans, IRAs, and similar accounts.
- Property transferred within one year of death without adequate consideration, with limited exceptions for gifts within the annual exclusion.
- Certain transfers where the decedent retained the right to income, possession, or the power to revoke.
The practical takeaway: moving assets into a revocable trust or adding a payable-on-death beneficiary does not shield them from a spouse’s elective share. Florida deliberately drafted the statute to defeat that exact maneuver. The same logic that governs a applies here in spirit, when a person keeps strings attached to a transfer, the law often pulls that asset back into the spouse’s reach.
How the 30% is calculated and satisfied
The mechanics run through sections 732.2055 and 732.2065. The elective estate is valued, multiplied by 30%, and that figure becomes the “elective share amount.” Then the law credits assets the spouse already received, property passing to the spouse, the spouse’s interest in the homestead, and the spouse’s interest in jointly held property all count toward satisfying the share before other beneficiaries have to contribute.
Only after those credits is the remaining shortfall apportioned among the other recipients of the elective estate, pro rata. A spouse who already inherited substantial assets may have a small or zero net claim. A spouse who was cut out entirely can force contribution from the trust, the children, and the beneficiaries of nonprobate transfers alike.
Why physicians and high-net-worth professionals are exposed
The Miami professionals I advise share a profile that makes elective-share exposure acute. Their wealth is concentrated in nonprobate assets, the very assets the statute reaches: large IRAs and 401(k)s, cash-value life insurance, brokerage accounts with TOD designations, and funded revocable trusts. Many are in second marriages and intend to provide for children from a prior relationship.
That combination is a textbook elective-share collision. The plan looks airtight on paper because everything avoids probate, yet nearly every dollar still sits inside the elective estate. When the surviving spouse elects, the children’s inheritance can be reduced by a court order they never anticipated. A solid is necessary, but a will alone never addresses this, the elective share is a structural problem that demands structural tools.
Planning around the elective share, the right way
“Planning around” the spouse does not mean trying to hide assets, that fails and invites litigation. It means using the tools Florida law actually blesses.
1. Marital agreements (prenuptial and postnuptial)
Under section 732.702, a spouse may waive the elective share, along with homestead rights, intestate share, and the family allowance, by a written contract signed in front of two witnesses. A prenuptial agreement needs no financial disclosure to be valid for waiver purposes; a postnuptial agreement entered after marriage requires fair disclosure of assets. A clean, properly executed waiver is the most reliable way to honor a plan that favors children from a prior marriage. It must be drafted carefully, an overreaching or poorly executed agreement is the first thing opposing counsel will attack.
2. The elective-share trust (giving the spouse a qualifying interest)
You do not always have to defeat the share, you can satisfy it efficiently. Sections 732.2025 and 732.2095 allow certain trust interests to count toward the elective share. By leaving the spouse a qualifying income interest for life (a QTIP-style or elective-share trust), the principal can ultimately pass to the children while the spouse’s statutory entitlement is honored. This is the elegant solution for blended families: the spouse is provided for, the share is satisfied, and the remainder is protected for the next generation.
3. Life insurance to fund, not to dodge
Because life insurance cash value is inside the elective estate but the death benefit is handled under specific crediting rules, insurance is better used as a funding source to make the spouse whole than as a hiding place. A policy can satisfy the spouse’s economic expectations and free other assets to pass to children without triggering a contested election.
4. Lifetime gifting, with care
Transfers more than one year before death, made for adequate consideration or within the annual gift exclusion, generally fall outside the elective estate. Aggressive deathbed transfers do not, the one-year lookback and the retained-interest rules will recapture them. Gifting is a long-horizon tool, not a last-minute fix.
Homestead, the wildcard layered on top
No Florida elective-share discussion is complete without homestead. Article X, section 4 of the Florida Constitution restricts how a homestead can be devised when there is a surviving spouse or minor child. If a homestead is improperly devised, the surviving spouse takes either a life estate with a remainder to the descendants or, under section 732.401, may elect a 50% tenancy-in-common interest instead. Homestead protections run parallel to the elective share and frequently complicate it. A Miami residence titled in one spouse’s name is rarely as freely disposable as clients assume, and the interplay between homestead and the elective share is one of the most litigated corners of Florida probate.
Common mistakes I see in Miami estate plans
- Assuming a revocable trust avoids the elective share. It does not, the trust corpus is squarely in the elective estate.
- Relying on beneficiary designations to “skip” the spouse. IRAs, 401(k)s, and TOD accounts are all counted.
- Skipping the marital agreement, or executing one without proper disclosure or witnesses, so it fails when challenged.
- Ignoring the homestead rules and the spouse’s separate homestead election.
- Treating the will as the whole plan. The elective share, homestead, and nonprobate transfers must be coordinated as one system.
For families with assets in more than one state, coordination matters even more, our Florida estate planning attorneys regularly work alongside the firm’s team and out-of-state counsel to keep a plan consistent across jurisdictions.
Where to start
If you are a physician or professional with a blended family, a sizable nonprobate estate, or a spouse you intend to provide for differently than your children, the elective share should be modeled before, not after, you sign documents. Review your beneficiary designations, your trust funding, your homestead title, and whether a marital agreement belongs in the plan. You can read more about foundational documents on our wills page and about the court process on our Florida probate overview, or reach out through our contact page to map your specific exposure.
The elective share is not a loophole to be feared, it is a rule to be designed around openly. Done right, it lets you honor a spouse and protect your children in the same plan, without leaving the outcome to a probate judge.
This article is general information about Florida law and is not legal advice. The elective share is fact-specific, consult a Florida estate planning attorney about your own circumstances.
Frequently Asked Questions
How much is the elective share in Florida?
A surviving spouse may elect to take 30% of the decedent’s elective estate under Florida Statutes section 732.2065. The percentage is fixed and does not change based on how long the marriage lasted.
Does a revocable living trust protect assets from the elective share?
No. Florida Statutes section 732.2035 expressly includes the decedent’s interest in a revocable trust within the elective estate. Funding a living trust does not shield those assets from a spouse’s elective-share claim.
Can a spouse waive the Florida elective share?
Yes. Under section 732.702, a spouse can waive the elective share through a written prenuptial or postnuptial agreement signed before two witnesses. A postnuptial agreement also requires fair disclosure of assets to be enforceable.
What is the deadline to file for the elective share?
Generally the election must be filed within the earlier of six months after service of the notice of administration or two years after the decedent’s death, per section 732.2135. Missing the deadline forfeits the right.
Are retirement accounts and life insurance counted in the elective estate?
Yes. Qualified retirement plans, IRAs, and the net cash surrender value of life insurance on the decedent’s life are all included in the elective estate under section 732.2035, even though they pass outside probate.
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