Elective share in Florida – When a wife or life partner (spouse) is not included in a Will

Florida’s Elective Share: Part II

Our previous blog post two weeks ago addressed Florida law regarding the protection to surviving spouses provided by the elective share from the perspective of estate planning (Elective Share – what is it and why you should know more about it). This post focusses on the options of a surviving spouse after declaring elective share. However, electing against the decedent’s estate may not always be the most beneficial option for a surviving spouse. Depending on the circumstances, a surviving spouse’s pretermitted share of decedent’s estate can be much larger than their elective share, and therefore, in some cases, it may not be beneficial to utilize the elective share.

Intestacy and Pretermitted Spouse

Unless the elective share has been validly waived, a surviving spouse can opt to for an elective share, regardless of whether the decedent’s spouse has left a will or not. However, in the case of an intestate estate, there is another option available for a surviving spouse. Florida law provides the scheme for distributing the intestate estate, which can result in 50% or 100% of the probate estate going to the surviving spouse. Fla. Stat. §732.102-103. The distribution of an intestate estate depends on if there are any surviving children or grandchildren (or other direct descendants) of the decedent, and if they are also descendants of the surviving spouse. Importantly, intestacy only accounts for the probate assets, which may be more or less than the elective estate.

Similarly, the elective share may not be the best choice for “pretermitted spouses”- spouses who married the decent after the making of their will and are therefore not included. In Florida, subject to some exceptions, pretermitted spouses receive the same share of the estate that they would had the decedent died intestate. Fla. Stat. §732.301.


To illustrate the above-mentioned, consider this example:

Husband prepared a Will in 2015 and marries Wife in 2017. Husband has a child from his prior marriage. Husband then dies unexpectedly, without having changed his Will to include Wife. Under Florida law, Wife can choose whether to seek her share of the estate as an elective share or as a pretermitted spouse.

Wife’s pretermitted spouse share is 50% of the probate estate. While it may seem better to take the higher percentage, it is crucial to look closely at the decedent’s assets. The pretermitted share only encompasses the probate estate, whereas the elective share combines both probate and non-probate assets. Depending on the situation, it may be that the pretermitted share offers a larger piece of a smaller pie, whereas the elective share may offer a smaller piece of a larger pie.

As is evident, determining whether to take an elective share or opt for an inheritance as a pretermitted spouse requires a careful analysis of both decedent and surviving spouse’s assets and should be discussed with an experienced Trust and Estate planning attorney, preferably with a taxation background. If you are considering the benefits and detriments of electing against a will, contact Bart Chepenik, JD LL M directly at 305-613-3548 (accessible daily) or Brad Trushin, Esq, Chepenik Trushin, LLP at (305) 981-8889, to discuss what’s best for your circumstances.


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