The Florida Spousal Elective Share, found at section 732.301 of the Florida Statutes, is a statutory right created by the legislature that is available to the surviving spouses of persons who were domiciled in Florida at the time of their death. The law was enacted to protect surviving spouses from being disinherited by allowing their surviving spouse to elect to receive a minimum of thirty (30) percent of the deceased’s estate regardless of the decedent’s will. The assumption that underlies the spousal elective share is that most of the property of a married decedent will be marital in nature regardless of how the property was actually titled at the time of the decedent’s death. Thus, in Florida, a surviving spouse who makes the election will receive at least 30% of the deceased’s estate unless they waived their elective share as part of a prenuptial or postnuptial agreement.
When must the Elective Share be Filed?
The spousal elective must be filed within the later of:
- Six months after service with the Notice of Administration; or
- 40 days after the date of termination of any proceeding which affects the amount the spouse is entitled to receive
Extensions for filing the election can be extended by the court for “good cause” shown. However, the upper limit is always going to be two years from the decedent’s date of death, in line with the statute of limitations.
Calculating the Elective Share
Originally, the elective share in Florida only applied to property that passed through the decedent’s estate in probate. However, a legislative update in 2001 greatly expanded the property that could be considered when making the election. Thus, under the revised section 732.2035, the elective estate consists of the following:
- The probate estate.
- The decedent’s protected homestead property.
- The decedent’s interest in accounts that contain a designated beneficiary, such as a transfer on death or pay on death beneficiary.
- The decedent’s interest in property that is owned as joint tenants with rights of survivorship or tenancy by the entireties.
- Property that is contained in a revocable instrument at the time of the decedent’s death. This includes property that was contained within a revocable trust at the time of the decedent’s death.
- Certain types of trusts and annuities.
- The decedent’s interest in a net cash surrender value of a life insurance policy before the decedent’s death.
- The rights of a person to be paid under the decedent’s pension plan or other retirement instrument. This part of the elective estate basically includes the value of any death benefit provided to a person by the decedent’s pension or other retirement plan.
- Specific property that was transferred within a 1-year period prior to the death of a decedent. This property can be complex, so this is where your attorney will do some research to determine if any of this property is part of the elective estate.
Attorney’s Fees and Costs
A dispute or objection to the election of spousal elective share is rarely a quick matter and can be costly. Section 732.2151 grants the court with discretion to determine awards for attorney’s fees and costs in matters where the entitlement to the election is disputed, the property included in the estate for purposes of the elective share is disputed, and matters involving the satisfaction of the elective share. The court may order that attorneys’ fees and costs follow the result of the suit, that attorneys’ fees and costs are apportioned between the parties, or that all attorneys’ fees and costs be paid by the prevailing party.
