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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.
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Under Florida Statute 732.201 the surviving spouse of an individual who dies and is also domiciled in Florida, has a right to a share of the elective estate of the decedent. This right gives the surviving spouse up to 30% of the decedent’s elective estate, even if they were expressly disinherited in a will or trust. Thus, even if a will specifically disinherits a spouse, Florida Law will override the terms of the will and apply the spouse’s right to an elective share. For this right to apply, the decedent must have been married and must have been domiciled somewhere within Florida, whether it was Palm Beach, Broward or Dade county, at the time of death.

A surviving spouse does not have to be completely disinherited to opt for the elective share. The elective share can be elected whenever a surviving spouse stands to receive less than 30% of decedent’s elective estate. The only exceptions to this rule come from valid pre nuptial agreements, post nuptial agreements and effective waivers by spouses of their elective share rights.

The 30% is calculated from the “elective estate” of the decedent’s assets. The elective estate tends to include a larger scope of assets than those included in decedent’s probate estate. Florida Statute 732.2035 lists those probate and non-probate assets which are included in the elective estate. Those assets include, but are not limited to, property owned by the decedent, revocable trust assets, funds from payable on death accounts, and any property given away within one year of decedent’s death.

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