Short answer: Generally, no. Florida Statutes § 732.201 and § 732.2065 give a surviving spouse the right to elect 30% of the deceased spouse’s elective estate. That estate can include revocable trust assets, certain jointly owned property, retirement benefits and protected homestead, not only probate assets. A valid premarital or postnuptial waiver under § 732.702 can change the result.
A man remarries later in life. He has two adult children from his first marriage and wants them to inherit the property he accumulated before marrying his second wife.
He prepares a will leaving everything to his children.
His new wife understands his wishes. They have discussed the arrangement, and neither anticipates a problem.
But if he dies while they are married, Florida law may give his wife the right to claim a substantial portion of his estate despite the will.
The reason is Florida’s elective share.
Florida generally allows individuals considerable freedom to decide who inherits their property. But that freedom is subject to several protections for surviving spouses.
One of the most significant is the right to claim 30% of the deceased spouse’s elective estate.
The calculation is more complicated than taking 30% of whatever property passes through probate. It can include assets that transfer outside a will, including certain trust property, retirement accounts, and jointly owned assets.
For married Florida residents, particularly those with children from previous relationships, understanding this rule can prevent an estate plan from producing a very different result than intended.
What Is the Elective Share in Florida?
Florida Statutes § 732.201 gives the surviving spouse of a person who dies domiciled in Florida the right to elect a share of the deceased spouse’s estate.
Section 732.2065 establishes the amount:
The elective share equals 30% of the elective estate.
The law is designed to protect a surviving spouse from being completely disinherited through a will or other property-transfer arrangements.
Consider a simplified example.
A Florida resident dies with an elective estate valued at $1 million.
The deceased person’s will leaves everything to two adult children.
Assuming the surviving spouse has not waived elective-share rights and properly exercises the election, the statutory share would equal $300,000.
That does not necessarily mean the spouse receives an additional $300,000 from the probate estate.
Property and benefits already passing to the spouse may count toward satisfying the elective share.
The law contains detailed provisions governing the calculation and sources of payment.
But the central point remains: A will leaving everything to someone other than the surviving spouse does not necessarily prevent that spouse from receiving a substantial share.
Does It Matter How Long the Couple Was Married?
Florida’s elective-share statute does not establish a minimum marriage duration.
A surviving spouse generally does not have to demonstrate that the marriage lasted ten, twenty, or thirty years before asserting the statutory right.
A relatively short marriage can therefore create significant estate-planning consequences.
That can surprise people who remarry after retirement, particularly when one spouse enters the marriage with substantially more assets than the other.
A valid waiver may alter the outcome, but the length of the marriage alone does not eliminate the elective-share right.
Is the Elective Share Based Only on Probate Assets?
No.
This is one of the most important aspects of Florida’s law.
Under Florida Statutes § 732.2035, the elective estate can include a broad range of property interests.
The calculation may include property owned individually by the deceased person, assets held in revocable trusts, certain jointly owned property, retirement benefits, and other interests identified by statute.
Florida also includes the deceased person’s interest in protected homestead property when calculating the elective estate, subject to applicable exclusions.
Consequently, the elective estate may be substantially larger than the probate estate.
Imagine a Florida resident who dies owning a relatively modest checking account but also has substantial retirement savings, a revocable trust, and a residence.
The probate estate might contain only a small portion of the person’s total wealth.
That does not mean the elective-share calculation is limited to the checking account.
Does Life Insurance Count?
Life insurance requires special attention.
Florida’s elective-share rules generally include the deceased person’s beneficial interest in the policy’s net cash surrender value immediately before death.
The statute excludes life insurance proceeds exceeding that value, subject to the applicable provisions.
That distinction can be important with term insurance, which ordinarily has no cash surrender value.
For example, a $1 million term life insurance policy does not automatically add $1 million to the elective estate merely because the deceased person owned the policy.
Other interests and arrangements may affect the calculation, and life insurance proceeds payable to the surviving spouse may be relevant when determining whether the elective share has already been satisfied.
Families should avoid assuming that every asset is included at its full death-benefit value.
The statute establishes specific valuation and exclusion rules.
Can a Revocable Living Trust Prevent an Elective-Share Claim?
Generally, no.
Suppose a husband creates a revocable living trust.
He transfers his investment accounts and other assets into the trust and names his adult children as beneficiaries after his death.
His wife is not a beneficiary.
The husband may assume that because the property is held in a trust, it will pass directly to his children without interference.
But Florida Statutes § 732.2035(5) generally includes qualifying property transferred by the deceased person when the transfer remained revocable at death.
A revocable trust therefore does not automatically remove its assets from the elective-share calculation.
This is an important distinction for families using trusts to avoid probate.
Avoiding probate does not necessarily prevent a surviving spouse from asserting statutory inheritance rights.
A revocable living trust can accomplish valuable objectives, including continuity of management, privacy, and the orderly transfer of assets.
But those benefits do not independently eliminate the surviving spouse’s rights under Florida law.
The issue is separate from whether the trust was properly funded.
As discussed in our article on what happens when a revocable trust is never funded, the trust document and actual ownership of property must work together.
When planning for a married individual, that coordination also needs to account for the surviving spouse’s statutory rights.
What If the Property Was Owned Before the Marriage?
Property brought into a marriage is not automatically excluded from the elective estate.
This is especially important for second marriages.
Someone may have owned investment accounts, real estate, or a business for decades before remarrying.
The fact that the property was acquired before the marriage does not, by itself, establish that it is excluded from the elective-share calculation.
Certain transfers may qualify for statutory exclusions.
For example, § 732.2045 addresses specified irrevocable transfers made before marriage, as well as other categories of excluded property.
But the exclusion analysis depends on the nature and timing of the transfer and the applicable statutory conditions.
Simply maintaining an account in one spouse’s name does not necessarily eliminate its relevance to the elective estate.
That is one reason premarital planning can be particularly important when either spouse brings substantial assets into the relationship.
Can an Irrevocable Trust Protect Assets From the Elective Share?
The answer depends on the trust and the circumstances.
Some irrevocable transfers may be excluded from Florida’s elective estate.
Others may remain relevant because the deceased person retained certain rights to income, principal, or beneficial enjoyment.
Section 732.2035 contains provisions addressing property transferred by the deceased person while retaining specified benefits or control.
Section 732.2045 establishes exclusions that may apply to particular transfers.
These rules can produce different outcomes depending on when a trust was established, whether it was irrevocable, what powers the settlor retained, and who benefited from the arrangement.
A trust created before marriage may be treated differently from one established during the marriage.
Likewise, transferring property shortly before death does not necessarily remove it from the elective estate.
Florida law includes certain transfers made during the year preceding death, subject to specified exceptions and exclusions.
The analysis is therefore more complicated than determining whether a document is labeled revocable or irrevocable.
For individuals considering advanced planning, the relevant question is whether the proposed arrangement accomplishes the intended objectives under the applicable trust and probate statutes.
Our existing article, When Does an Irrevocable Trust Actually Make Sense?, discusses the broader trade-offs involved in transferring property to an irrevocable trust.
Those trade-offs become particularly important when marital rights are involved.
Can a Spouse Waive the Elective Share?
Yes.
Florida law allows spouses to waive elective-share rights through a properly executed agreement.
Under Florida Statutes § 732.702, the waiver may occur before or after marriage.
A premarital agreement may establish that each spouse retains the right to dispose of specified property without the other spouse asserting an elective-share claim.
A postnuptial agreement can also address those rights.
The statute permits a complete waiver or a more limited waiver addressing particular interests.
However, the agreement must comply with applicable legal requirements.
For Florida residents executing agreements covered by the statute, the waiver generally must be in writing and signed by the waiving party in the presence of two subscribing witnesses.
The statute also distinguishes between agreements executed before marriage and those executed afterward.
Is Financial Disclosure Required?
Under § 732.702(2), when the waiver is executed after marriage, each spouse must make fair disclosure of that spouse’s estate to the other.
The same statutory disclosure requirement does not apply to an agreement executed before marriage.
Other laws governing premarital agreements and contractual validity may also require consideration.
For example, Florida’s Uniform Premarital Agreement Act, § 61.079, contains provisions governing the enforceability of qualifying premarital agreements.
Accordingly, the absence of a disclosure requirement under one particular statute should not be treated as a guarantee that every premarital agreement will be enforceable.
The drafting, execution, circumstances, and applicable statutory provisions all matter.
Does a Waiver Have to Eliminate Every Right?
No.
A waiver may be tailored to the parties’ objectives.
For example, spouses might agree that each will retain particular premarital property for the benefit of children from an earlier marriage.
The agreement could address elective-share rights while preserving other arrangements intended to benefit the surviving spouse.
However, Florida law recognizes several distinct spousal rights, and a waiver should identify which rights are being relinquished.
A poorly coordinated waiver can create uncertainty about homestead, intestate succession, exempt property, and other statutory entitlements.
For blended families, these issues are usually best considered as part of a coordinated marital and estate-planning arrangement rather than through an isolated waiver signed without reference to the rest of the plan.
Is the Elective Share the Same as Florida Homestead Rights?
No.
The elective share and Florida’s constitutional homestead protections are separate legal concepts.
Both may affect what happens when a married property owner dies, but they operate under different rules.
Florida’s homestead devise restrictions can limit the owner’s ability to leave a qualifying residence to someone other than a surviving spouse when a spouse or minor child survives.
Those restrictions arise under Article X, Section 4 of the Florida Constitution and Florida Statutes § 732.4015.
The elective share, by contrast, establishes a statutory right to a portion of the deceased person’s elective estate.
The deceased person’s interest in protected homestead is generally included in the elective estate, subject to applicable exceptions.
But including the home’s value in the calculation does not automatically mean the residence must be sold to satisfy an elective-share claim.
The relevant homestead interests, valuation rules, waivers, and statutory payment provisions need to be considered together.
These questions can become particularly complicated in second marriages.
A surviving spouse may have homestead rights that affect how a residence passes, while also having an elective-share claim involving other assets.
Our article on Florida homestead devise restrictions discusses the constitutional limitations in greater detail.
What If the Deceased Person Wanted Everything to Go to Children From a First Marriage?
This is one of the most common situations in which elective-share planning becomes important.
Consider a widower who has two adult children.
He owns a home, retirement accounts, and a closely held business.
Several years later, he remarries.
He wants his second wife to be financially secure, but he also wants most of his accumulated wealth to pass to his children.
Those objectives are not necessarily incompatible.
However, leaving everything to the children and assuming the surviving spouse will simply accept the arrangement can create substantial uncertainty.
Without an effective waiver or other appropriate planning, the surviving spouse may be entitled to exercise elective-share rights.
That election could reduce the property otherwise passing to the children.
Depending on the estate’s composition, the consequences may be difficult.
If much of the deceased person’s wealth is tied up in a business or other illiquid assets, satisfying an elective-share obligation may require significant financial planning.
An estate containing $1 million in publicly traded securities presents a different liquidity problem from an estate whose value consists primarily of a family business.
In the latter situation, the beneficiaries may not have enough readily available cash to satisfy an obligation without borrowing, liquidating assets, or making other arrangements.
The estate plan should account for those possibilities.
The business’s operating agreement, any buy-sell arrangement, available liquidity, and the marital estate plan should be coordinated.
A plan that works mathematically on paper may be considerably more difficult to administer when the available assets cannot readily be converted into cash.
Does the Surviving Spouse Automatically Receive 30%?
Not exactly.
The surviving spouse has a right to make an election under the statute.
The election is not simply an automatic transfer of 30% of every asset.
The surviving spouse must ordinarily exercise the right within the applicable statutory deadlines.
The amount also depends on the elective estate’s composition and the property already passing to or for the benefit of the surviving spouse.
For example, suppose the elective share is calculated to be $300,000.
If the spouse is already receiving qualifying property worth $350,000, there may be no additional amount necessary to satisfy the elective share.
If the spouse receives only $100,000 in property credited toward the elective share, an additional amount may be required.
These examples are simplified.
Florida Statutes §§ 732.2075 and 732.2095 contain detailed rules concerning satisfaction and valuation of the elective share.
The resulting calculation may involve trusts, retirement benefits, jointly owned assets, and contributions from recipients of property included in the elective estate.
A surviving spouse should therefore not assume that making the election automatically produces an additional cash payment equal to 30% of the deceased person’s total wealth.
How Long Does a Surviving Spouse Have to Claim the Elective Share?
Florida imposes strict deadlines.
Under Florida Statutes § 732.2135, the election generally must be filed by the earlier of:
- Six months after the surviving spouse, or the appropriate representative identified in the statute, receives service of the notice of administration; or
- Two years after the deceased person’s death.
The statute permits extensions in specified circumstances.
But an extension is not automatic, and the applicable timing requirements must be satisfied.
A surviving spouse who believes an elective-share claim may be appropriate should therefore evaluate the issue promptly.
Waiting until the estate is nearly closed may eliminate available options.
What If the Surviving Spouse Is Incapacitated?
Florida law allows an attorney-in-fact or guardian of the property to exercise elective-share rights under certain circumstances.
However, § 732.2125 requires court approval when the election is exercised through those representatives.
Before approving the election, the court must determine that it is in the surviving spouse’s best interests during the spouse’s probable lifetime.
That requirement can be significant when a surviving spouse has dementia or another condition affecting decision-making capacity.
The existence of a durable power of attorney does not necessarily eliminate the need for judicial approval of an elective-share election.
Can Beneficiaries Be Required to Contribute Property?
Potentially, yes.
Florida’s elective-share statutes identify the sources from which the elective share may be satisfied.
Under § 732.2075, property passing to or for the benefit of the surviving spouse is generally considered first, subject to the statutory provisions and any applicable governing-document directions.
If those interests do not fully satisfy the elective share, additional amounts may be payable from other property included in the elective estate.
The statute establishes an order of contribution involving probate assets, revocable trusts, and other categories of recipients.
For beneficiaries, this can be an unwelcome surprise.
An individual may receive property through a beneficiary designation or trust and assume that the property is entirely outside the probate process.
But the fact that an asset passed outside probate does not necessarily eliminate its relevance to an elective-share proceeding.
The ultimate liability depends on the asset, the statutory classification, applicable exclusions, and the order of contribution.
That is one reason estate administrators should understand potential elective-share rights before making substantial distributions.
Distributing property before resolving those obligations can complicate the administration.
What Should Married Florida Residents Consider When Preparing Their Estate Plans?
The elective-share statute does not mean that every married couple needs a complicated estate plan.
For couples who intend to leave most or all property to each other, the statutory protection may have little practical effect.
But the analysis becomes more important when the parties have different inheritance objectives.
A second marriage is an obvious example.
One spouse may want certain assets preserved for children from a prior relationship.
Another couple may own separate businesses or substantial premarital investments.
Some spouses prefer to maintain largely independent finances while providing for each other through limited gifts, insurance, or continuing trusts.
Florida law provides planning options for these arrangements, but the documents need to be coordinated.
The marital agreement, will, trust, asset ownership, beneficiary designations, and available liquidity should reflect a consistent plan.
A trust that directs property to children may be perfectly valid while still remaining subject to a surviving spouse’s elective-share rights.
Similarly, a waiver that addresses elective-share claims may leave other spousal rights unresolved.
The objective is to understand those interactions before the death of either spouse.
Planning for a Second Marriage Requires More Than a New Will
For individuals who remarry later in life, estate planning often involves two legitimate interests.
They want to provide for their spouse.
They also want to preserve the inheritance they intend for their children.
Those objectives can be accommodated in many circumstances, but they require more thoughtful planning than simply writing a will that leaves everything to one side of the family.
Florida’s elective-share provisions may affect the distribution of property even when a will or trust clearly expresses the deceased person’s intentions.
A properly structured marital agreement may resolve some of those issues.
Appropriate trust provisions, beneficiary arrangements, and liquidity planning may address others.
The critical point is to determine what Florida law permits before relying on an estate plan that assumes the surviving spouse has no claim.
An individual may have every intention of leaving property to particular beneficiaries.
But unless the surviving spouse’s rights have been considered, the ultimate distribution may be quite different.
For Florida residents with substantial premarital assets, closely held businesses, or children from previous relationships, that is a question worth addressing while both spouses can still participate in the planning.
Frequently Asked Questions
Does it matter how long we were married? No. Florida’s elective-share statute does not set a minimum marriage length. A valid waiver may change the outcome, but the length of the marriage alone does not eliminate the right.
Can a revocable living trust keep assets away from the elective share? Generally, no. Section 732.2035(5) generally includes property transferred by the deceased person when the transfer remained revocable at death. Avoiding probate does not necessarily prevent a surviving spouse from asserting statutory rights.
Does a $1 million term life policy add $1 million to the elective estate? Not automatically. The rules generally include the policy’s net cash surrender value immediately before death, and term insurance ordinarily has none.
What does a valid elective-share waiver require? For Florida residents, a waiver under § 732.702 generally must be in writing and signed in front of two subscribing witnesses. It may be signed before or after marriage. A waiver signed after marriage also requires fair disclosure of each spouse’s estate.
What is the deadline to elect? Under § 732.2135, the deadline is generally the earlier of six months after service of the notice of administration or two years after the death. Extensions are not automatic.
This article is for general educational purposes and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change; consult an attorney about your specific situation.