A Surviving Spouse’s Right to the “Elective Share” in Florida

Florida is one of the many separate property states that give a decedent’s surviving spouse an “elective share” of the decedent’s property. This share of the estate is but one of several supportive mechanisms for surviving spouses in Florida. Others include homestead, social security, and employee pension plans. The term “elective share” implies the choice, or “election,” that state statutes typically grant the surviving spouse after the decedent’s will has been admitted to probate. The surviving spouse can either take under the specific provisions of the decedent’s will, or the spouse can renounce the will and take a statutory, fractional share of the decedent’s estate. In the usual case, the decedent has already bequeathed to the surviving spouse a majority (or at least a significant amount) of his or her estate property, leaving the concept of the “elective share” out of the picture. In more unusual cases, however, the decedent completely disinherits the surviving spouse under his or her will, or simply designates a very small portion of his or her assets to the surviving spouse. The latter is most commonly where elective share statutes come into play, especially when the decedent passed away leaving a substantial amount of wealth behind.

The primary policy justification behind Florida’s elective share statutes is that the surviving spouse most likely contributed to the decedent’s acquisition of wealth in some way, shape, or form, and rightly deserves to receive of portion of that wealth, despite the decedent’s wishes to the contrary. For example, the South Dakota Supreme Court recently reversed an appellate court’s controversial determination that a decedent’s surviving wife was not entitled to receive an elective share in In re Estate of Shipman, 2013 S.D. 42. In Shipman, the husband executed a will in 2009 that entirely disinherited his wife after she had been moved to a nursing home in 2008. His wife had been suffering from dementia, required full-time care, and her husband could no longer adequately provide for her. The husband’s will indicated that he had disinherited his wife because he “ha[d] given her sufficient consideration during [his] lifetime.” On the same day that the husband executed the will, the wife’s attorney-in-fact (her son) disclaimed any inheritance she may have been entitled to receive from her husband’s estate “due to the fact that [her husband had] taken care of [her] and paid for [her] nursing home care[.]”

The circuit court later denied the wife’s petition for an elective share of her husband’s estate, concluding that the wife had validly disclaimed her right to an elective share, and that she had received her “fair share” of the estate when the couple’s joint resources were used to pay for her medical care. The Department of Social Services intervened to move the circuit court to reconsider, but was ultimately dismissed. Nevertheless, the South Dakota Supreme Court reversed and remanded for the wife to obtain her elective share, finding that the circuit court erred by denying the wife’s petition and that she was entitled to an elective share of her husband’s estate.

Under Florida law, the amount of the elective share for a surviving spouse of a person who dies domiciled in Florida is an amount equal to thirty percent of the elective estate. Fla. Stat. 732.201 & 732.2065. If the surviving spouse is unhappy or dissatisfied with the amount bequeathed to her under the decedent’s will, the surviving spouse can exercise her right of election. Furthermore, with approval of the court, the right of election may be exercised by an attorney-in-fact or guardian if the court determines “that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime. Fla. Stat. 732.2125. In addition, “the election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse . . . or the date that is 2 years after the date of the decedent’s death.” Fla. Stat. 732. 2135.

Although these statutory provisions can be viewed as the State’s unwarranted limitation on the power of a testator to dispose of his property as he wishes, these inheritance laws have strong economic justifications. In the vast majority of cases it is, in actuality, a widow’s share; as a matter of historical fact, men earn more money than women during their lifetimes, but women tend to outlive men. And, as previously discussed, a husband’s wealth at death is likely to be a product, in part, of the wife’s “work,” even if she never received any monetary income. Thus, without Florida’s statutory protection against disinheritance of a widow’s rightful share of her husband’s estate, women could negotiate with their husbands for contractual protection-another set of legal fees that no one wants to suffer.

If you or someone you know would like to take appropriate action in a probate proceeding to enforce his or her right to an elective share, it is important that you have experienced and knowledgeable representation. If you are in need of such representation, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with any estate planning needs you may have. Please feel free to contact us for an initial consultation.