Florida’s Elective Share – Why it May Be Hard to Disinherit a Spouse

Under Florida law, a surviving spouse is entitled to certain rights upon the death of the first spouse regardless of what the estate planning documents say.  One of these statutory rights is the surviving spouse’s right to a portion of the deceased spouse’s estate, also known as the elective share.  Unless waived through a valid prenuptial or postnuptial Agreement, a surviving spouse’s elective share amount is equal to 30% of the deceased spouse’s net elective estate.

Though this is a statutory right, the surviving spouse must file a timely election with the probate court in order to collect the elective share amount.   Pursuant to Section 732.2135, Florida Statutes, the election must be filed on or before the earlier of: (i) 6 months after the date the surviving spouse received a copy of the Notice of Administration for the deceased spouse’s estate; or (ii) the 2nd anniversary of the deceased spouse’s death.

Once the election is properly made, the Personal Representative will determine what assets are included in the elective estate.  The elective estate is much broader then the probate estate, so the Personal Representative may have to investigate to ensure all assets are properly included.  The elective estate includes:

• The deceased spouse’s probate estate;
• Property held in the decedent’s revocable trust;
• Any accounts registered as “pay on death,” “transfer on death,” “in trust for,” or co-ownership with right of survivorship;
• Property held in joint tenancy with right of survivorship or as tenants by the entirety;
• Certain annuities and retirement accounts;
• Certain transfers made within the last year before the deceased spouse’s death;
• The deceased spouse’s beneficial interest in the net cash surrender value of any policy on the deceased spouse’s life; and
• Property transferred in satisfaction of the elective share.

After the elective estate is determined, it will be reduced by certain liabilities of the deceased spouse.  In Florida, these liabilities include all claims paid or payable from the elective estate and all mortgages, liens, or security interests on the property.  Estate and/or trust administration expenses do not reduce the elective estate.  Once the liabilities are deducted, the result is the net elective estate.  The surviving spouse’s elective share amount is 30% of the net elective estate.

The Personal Representative and/or successor Trustee will look to the deceased spouse’s Last Will or Revocable Trust, as applicable,  for direction on how to satisfy the elective share amount.  If those documents are silent, the elective share amount is satisfied first from assets included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, whether through joint ownership or through a beneficiary designation.  The assets the surviving spouse receives as a result of the deceased spouse’s death may fully satisfy the elective share amount.  If that is not the case, Section 732.2075, Florida Statutes lists three classes of assets to satisfy the elective share amount, in the following order:

• Class 1:  The Decedent’s probate estate and revocable trusts; then
• Class 2: Assets held in accounts titled “pay on death,” “transfer on death,” “in trust for” or as joint tenants with rights of survivorship, and the deceased spouse’s interest in the net cash surrender value on any policy insuring the deceased spouse; then
• Class 3: All remaining property (other then protected charitable interests) included in the net elective estate computation.

There are certain assets that are excluded from the elective estate, such as Florida homestead property.  Further, how various assets are valued as part of the elective estate depends on the deceased spouse’s rights immediately before his or her death or perhaps on how many joint owners of the property there were just before the deceased spouse’s death.  The surviving spouse may also be entitled to benefits in addition to the elective share, such as a family allowance and exempt property.  Therefore, any surviving spouse should consult an attorney experienced in this area as soon as possible to avoid missing any filing deadlines and to ensure he or she receives his or her full entitlement under the law.

• Jennifer D. Sharpe is a Fort Lauderdale estate planning attorney with Olive Judd, P.A. Jennifer practices primarily in the areas of estate and gift tax, estate planning, probate administration, trust administration, and creditor protection planning.