Common Questions About Florida’s Elective Share Rule

An often misunderstood aspect of Florida probate administration is the “elective share” rule. The elective share is essentially a legal protection against one person completely disinheriting their spouse. The elective share basically represents the share that the surviving spouse may legally claim in the deceased spouse’s property, notwithstanding any will or revocable trust to the contrary.

Is Every Spouse Entitled to an Elective Share?

Under Florida law, the “surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate.” There is no further qualifier here. In other words, the surviving spouse is entitled to claim an elective share regardless of the length of the marriage. Even if the parties were estranged at the time of the deceased spouse’s passing, so long as they were still legally married, the surviving spouse’s elective share rights remain intact.

Does Putting Property Into a Trust Avoid Affecting an Elective Share?

Transferring property into a revocable trust is a common tool for avoiding probate in Florida. Any property in such a trust is not considered part of a deceased individual’s probate estate. But that does not mean you can disinherit a spouse simply by transferring all of your property into a revocable trust.

In fact, a surviving spouse’s elective share does not just include the deceased spouse’s probate estate. It actually encompasses a much broader “elective estate,” which may include any or all of the following:

• the deceased spouse’s probate estate;
• the deceased spouse’s interest in any homestead property (i.e., primary residence) protected under Florida law;
• any of the deceased spouse’s accounts deemed payable- or transferable-on-death to someone else;
• any property the deceased spouse held a fractional interest in under a joint tenancy;
• the deceased spouse’s interest in the net cash surrender value of any life insurance policy at the time of their death;
• the deceased spouse’s retirement or pension benefits; or
• any gifts or transfers of property that the deceased spouse made to a revocable trust.

The elective share itself is 30 percent of all property found to be part of the elective estate.

How Can I Avoid the Elective Share?

The easiest way to avoid a potential elective share claim is for you and your spouse to sign a prenuptial or postnuptial agreement waiving any such right. Such agreements are legally enforceable under Florida law. Indeed, it is fairly common for parties who are marrying for the second (or even third) time to agree to such waivers in order to protect the inheritances of their children from prior relationships.

It is also possible to exclude certain property from your elective estate by transferring it into an irrevocable trust. Unlike a revocable trust, where you retain the ability to remove the property from the trust up until your death, with an irrevocable trust a third-party trustee retains full control over the trust’s assets. These trusts need to be carefully structured, however, to avoid any potential spousal or other creditor claims.

If you have additional questions and would like to speak with a qualified St. Petersburg estate planning attorney, contact Legacy Protection Lawyers, LLP, today to schedule a consultation.