Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. It is found in Florida Statutes Chapter 732 (sections 732.201 through 732.2155), and it cannot be quietly written out of a will. For blended families and second marriages in Boca Raton, this single rule is often the difference between a plan that holds up and one that detonates in probate court.

I have sat across the table from a lot of remarried clients who assumed that “my will leaves everything to my kids” was the end of the conversation. In Florida, it usually isn’t. Below is how the elective share actually works, what gets pulled into the calculation, and the legitimate ways spouses on both sides of a second marriage protect or plan around it.

What the Florida elective share is (and why it exists)

The elective share is a spousal protection. The Florida Legislature decided that a married person should not be able to die and leave their husband or wife with nothing, so it guaranteed the survivor a minimum slice of the estate. That slice is 30% of the elective estate under Florida Statutes section 732.2065.

The key word is “elective.” The surviving spouse is not forced to take it. They can accept what the will or trust gives them, or they can “elect” the statutory 30% if that number is larger. The election is a deliberate choice, made through a formal filing in the probate proceeding, and it has a deadline. Under section 732.2135, the spouse generally must file the election within the earlier of six months after being served with the notice of administration, or two years after the decedent’s death.

Two practical consequences flow from this. First, the elective share is not automatic — somebody has to claim it. Second, if you are the surviving spouse and you sit on your rights, you can lose them. Both points matter enormously in contested blended-family estates.

Elective share vs. homestead vs. exempt property

People conflate these constantly, and they are not the same thing. Florida gives a surviving spouse several overlapping protections:

• Elective share — 30% of the elective estate (Fla. Stat. § 732.2065).
• Homestead rights — constitutional protections on the primary residence, including a life estate or a one-half tenancy-in-common option under Fla. Stat. § 732.401.
• Exempt property — certain household furnishings and up to two vehicles under Fla. Stat. § 732.402.
• Family allowance — up to $18,000 for support during administration under Fla. Stat. § 732.403.
• Intestate or pretermitted spouse share — separate rules that apply when there is no valid provision for the spouse at all.

A surviving spouse can layer several of these. That is exactly why a “disinherit the spouse” plan drafted on a napkin almost never survives contact with the Florida probate statutes.

What counts in the “elective estate” — it’s bigger than you think

Here is where most do-it-yourself plans fall apart. The 30% is not calculated on the probate estate alone. Florida deliberately built an expansive definition so that people couldn’t dodge the share by moving assets out of the will.

Under sections 732.2035 and 732.2045, the elective estate generally includes:

1. The decedent’s probate estate.
2. The decedent’s interest in revocable (living) trusts — yes, the trust counts.
3. Pay-on-death and transfer-on-death accounts, and certain joint accounts with right of survivorship.
4. The net cash surrender value of life insurance on the decedent’s life.
5. Amounts in retirement and pension plans.
6. Property over which the decedent held a general power of appointment.
7. Certain transfers made within one year of death, including gifts above the annual exclusion amount.

Translate that into plain English: titling your brokerage account “TOD to my son” or naming your daughter on a payable-on-death CD does not remove those dollars from the elective-share math. Florida saw that move coming decades ago. The clawback for gifts inside the one-year window (section 732.2035) is specifically there to stop deathbed asset stripping.

A Boca Raton example

Say a widower remarries at 68. He owns a $1.2 million condo titled in a revocable trust, a $600,000 IRA naming his adult children, and $400,000 in a TOD account also going to the children. His will leaves his new wife $50,000. He assumes she gets $50,000.

She doesn’t have to accept that. If her elective share is 30% of a roughly $2.2 million elective estate, she can elect around $660,000. The trust, the IRA, and the TOD account all feed the calculation. The children’s “guaranteed” inheritance shrinks to satisfy her share. This is the precise scenario that wrecks second-marriage estate plans, and it is entirely avoidable with planning done in advance.

How to plan around the elective share (legitimately)

“Planning around” the elective share does not mean tricking your spouse. The statutes are protective and the courts in Palm Beach County will unwind clumsy attempts to evade them. But there are several lawful, well-recognized strategies.

1. A prenuptial or postnuptial agreement with a written waiver

This is the cleanest tool by far. Under Florida Statutes section 732.702, a spouse can waive the elective share — along with homestead, exempt property, and family allowance — in a signed written agreement. A prenup signed before the wedding does not even require full financial disclosure to be valid under that statute; a postnuptial agreement signed during the marriage does require fair disclosure. For second marriages, a properly drafted prenuptial agreement is the single most effective and most enforceable way to honor a “my assets go to my kids, your assets go to yours” arrangement.

2. The elective share (or QTIP) trust

Florida actually rewards using a qualifying trust to satisfy the elective share. Under sections 732.2025 and 732.2095, assets passing to a qualifying elective-share trust — typically a QTIP-style trust that pays the surviving spouse income for life — can count toward the 30% obligation. This lets a remarried client provide for the new spouse during their lifetime while preserving the remainder for children from a first marriage. The spouse gets income and security; the kids ultimately get the principal. It is a workhorse structure for blended families.

3. Lifetime gifting outside the one-year window

Because the clawback only reaches certain transfers within one year of death, gifts made well in advance and properly structured fall outside the elective estate. This requires real time horizon and disciplined documentation — it is not a last-minute fix — but it is a legitimate way to reduce the base on which the 30% is calculated.

4. Irrevocable trusts established with proper timing

An irrevocable trust funded outside the statutory windows, where the decedent does not retain the kinds of rights that pull assets back into the elective estate, can move value out of the calculation. The structure has to be genuine; retained control defeats it. Some clients also explore specialized vehicles such as a in other jurisdictions for related planning goals, though the right tool always depends on your state of residence and your specific facts.

5. Homestead and life-estate planning for the residence

The marital home gets special treatment in Florida. Rather than leaving the survivor a full ownership interest, some plans use a life estate so the spouse can live in the home while the remainder passes to the children. The interplay between homestead law and tools like is one of the trickiest areas in remarriage planning, and it deserves careful, state-specific drafting.

How to protect a surviving spouse who is being shortchanged

Now flip the perspective. If you are the surviving spouse and you have just learned that your late husband or wife tried to leave you a token amount while routing the real money to stepchildren, the elective share is your shield.

Practical protections to know:

• Act fast. The election deadline (six months from the notice of administration, or two years from death) is unforgiving. Calendar it the day you are served.
• Demand an accounting. Because the elective estate sweeps in trusts, POD/TOD accounts, and insurance, you are entitled to information about assets that never touched the probate file.
• Don’t waive accidentally. Signing a quick “release” handed to you by the personal representative, or accepting a specific bequest without reserving your rights, can compromise your election.
• Check the homestead. You may be entitled to a life estate or a half-interest in the marital home independent of the elective share.

The surviving spouse’s leverage is real, but it is procedural. Miss the window or sign the wrong paper and the protection evaporates.

Common mistakes I see in blended-family estates

• Relying on beneficiary designations to disinherit. POD, TOD, and joint titling do not escape the elective estate.
• A handshake instead of a prenup. Verbal “we each keep our own” understandings are worth nothing against section 732.2065.
• Stale documents after remarriage. An old will that predates the new marriage can trigger pretermitted-spouse rules on top of the elective share.
• Last-minute gifting. The one-year clawback turns a panic transfer into an avoidable lawsuit.
• Ignoring homestead. Treating the house like any other asset, when it has its own constitutional rules.

When to bring in a Florida estate planning attorney

If you are entering a second marriage, blending children from prior relationships, or you have already inherited and suspect you were shortchanged, the elective share is too consequential to guess at. The strategies that work — prenuptial waivers, elective-share trusts, properly timed gifting — only work when they are documented correctly and well before they are needed. Our Boca Raton practice focuses on exactly these blended-family scenarios, and our colleagues handle across the state.

You can review related guidance on our wills and Florida probate pages, or contact our office to talk through your specific second-marriage plan. The goal is simple: make sure the people you love are provided for, without a fight in front of a Palm Beach County probate judge.

Frequently Asked Questions

How much is the elective share in Florida?

The Florida elective share is 30% of the decedent’s elective estate under Florida Statutes section 732.2065. The ‘elective estate’ is broad: it includes the probate estate plus revocable trusts, pay-on-death and transfer-on-death accounts, certain joint accounts, the cash value of life insurance, retirement plans, and some gifts made within one year of death.

Can a surviving spouse be disinherited in Florida?

Not without a valid written waiver. Even if a will or trust leaves a spouse nothing, the spouse can elect 30% of the elective estate. The only reliable way to limit or eliminate that right is a properly executed prenuptial or postnuptial agreement under Florida Statutes section 732.702.

What is the deadline to claim the elective share in Florida?

Under Florida Statutes section 732.2135, the surviving spouse generally must file the election within the earlier of six months after being served with the notice of administration, or two years after the decedent’s death. Missing the deadline forfeits the right, so it should be calendared immediately.

Do trusts and beneficiary accounts count toward the elective share?

Yes. This is the most common misconception. Revocable living trusts, POD/TOD accounts, joint-with-survivorship accounts, life insurance cash value, and retirement plans are all pulled into the elective estate. Titling assets to avoid probate does not remove them from the 30% calculation.

How can blended families plan around the elective share legally?

The most enforceable tool is a prenuptial agreement with a written elective-share waiver. Other lawful strategies include a qualifying elective-share or QTIP trust that gives the surviving spouse lifetime income while preserving principal for children, properly timed lifetime gifting outside the one-year clawback window, and homestead or life-estate planning for the marital residence.