Under Florida law, you cannot intentionally disinherit your spouse unless your spouse agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement. In Florida, a surviving spouse, whether or not they were mentioned in their deceased spouse’s will, has the option to receive a portion of their deceased spouse’s estate called the “elective share.” In other words, the surviving spouse may choose the greater of what was provided in the will or what Florida law provides. The elective share is equal to 30% of the deceased spouse’s “elective estate.” The elective estate includes:
- The decedent’s Probate Estate defined as “all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia.”
- Homestead property
- Joint bank Accounts, Pay on Death Accounts, Totten Trusts
- Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property)
- Revocable Trusts
- Certain irrevocable transfers, including transfers with retained right to income or principal or retained right to discretionary principal distributions
- Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death)
- Pensions and Retirement Plans
- Transfers made within one year of decedent’s death
- Irrevocable transfers to an Elective Share Trust
- Property passing directly to surviving spouse
If your spouse has attempted to disinherit you, you should seek legal advice as soon as possible. Generally, an election must be filed within the earlier of six months of the date of service of a copy of the notice of administration, or within two years after the date of the decedent’s death. During that time period, the surviving spouse, or an attorney-in-fact or guardian of the property of the surviving spouse, may petition the court for an extension of time for making an election. The court for good cause shown may extend the time for election.5 If the court grants the petition for an extension, the election must be filed within the time allowed by the extension.
If the court determines that an election is made or pursued in bad faith, the court may assess attorney’s fees and costs against the surviving spouse or the surviving spouse’s estate.
EPGD Business Law is here to assist. We strongly recommend seeking an attorney consultation if there is doubt or suspect of foul play in your estate plan or will. Call us today to schedule a consultation at (786) 837-6787 or email us at info@epgdlaw.com for more information on the FL Elective Share.
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
