The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” even if the will or trust leaves them less. Codified in Florida Statutes sections 732.201 through 732.2155, the elective share reaches far beyond the probate estate to capture revocable trust assets, certain pay-on-death accounts, jointly held property, and even some lifetime transfers. For affluent Florida couples, it is one of the few estate-planning rules you cannot simply draft your way out of with a tidy will.
If you own real estate in Palm Beach, a closely held business, brokerage accounts, and a blended family, the elective share is not an abstraction. It is the single most likely reason your carefully built plan gets challenged after you die. This article explains how the right works, what counts toward the 30%, the lawful ways to plan around it, and the traps that catch high-net-worth families most often.
What the Florida elective share actually is
Florida, like most non-community-property states, does not let a married person fully disinherit a spouse. Instead of forcing equal ownership during the marriage, Florida gives the survivor a backstop at death: the elective share. Under Florida Statutes § 732.2065, that share equals 30% of the elective estate.
The key word is elective. The surviving spouse does not get this automatically. They must affirmatively make the election, in writing, and file it with the probate court. Miss the deadline and the right evaporates. So the elective share is best understood as a remedy the survivor can wield, not a default distribution that happens on its own.
Why 30% and not half
People often confuse the elective share with a community-property split. Florida is a separate-property state. There is no automatic 50/50 ownership of marital assets, and there is no “half” at death. The Legislature settled on 30% of a broadly defined estate as the compromise between protecting a dependent spouse and respecting a decedent’s freedom to direct their own property. That broad definition is where the real planning happens.
What counts toward the elective estate
This is the part that surprises clients. The elective estate, defined in § 732.2035, is deliberately expansive so a spouse cannot be cut out through nonprobate workarounds. It generally includes:
- The probate estate (assets passing under the will or by intestacy).
- The decedent’s revocable (living) trust assets.
- Pay-on-death and transfer-on-death accounts, and “in trust for” accounts.
- The decedent’s fractional interest in property held in joint tenancy or tenancy by the entirety.
- The net cash surrender value of life insurance on the decedent’s life that the decedent owned.
- Amounts in retirement and pension plans (subject to specific valuation rules).
- Property transferred within one year of death, and certain transfers where the decedent retained an interest or the power to revoke.
In other words, you cannot defeat the elective share simply by dumping everything into a revocable trust or naming a child as beneficiary on every account. Florida pulls those assets back in for the calculation. The Legislature anticipated the obvious dodges and closed most of them.
What is generally outside the elective estate
Not everything counts. Certain items are excluded or treated favorably, including the proceeds of a valid waiver, property the spouse already receives that satisfies the share, and qualified transfers made in exchange for adequate consideration. Irrevocable transfers made well before death, and outside the one-year lookback, are typically beyond reach when structured correctly. This is precisely the territory where high-net-worth planning lives, and where experienced counsel earns their fee.
How the share is calculated and satisfied
Computing the elective share is a two-step exercise. First you value the entire elective estate. Then you apply 30%. But the survivor does not automatically receive new property worth that amount. Florida first credits assets the spouse is already getting against the share. Under the satisfaction rules in § 732.2075, property passing to the surviving spouse, including outright bequests and certain qualifying trust interests, counts toward the 30% before anyone else has to contribute.
Only if those credited assets fall short does the rest of the estate, the beneficiaries and recipients of nonprobate transfers, have to make up the difference on a pro rata basis. For a family with a thoughtful plan, the survivor may already be receiving far more than 30%, in which case the election is moot. The election bites hardest in blended families where the survivor was left a comparatively small slice.
Deadlines that quietly control everything
The right to elect is time-barred. The election must generally be filed by the earlier of (a) six months after service of the notice of administration on the surviving spouse, or (b) two years after the decedent’s death, per § 732.2135. Extensions are possible in narrow circumstances, but a surviving spouse who sits on the right can lose it. Personal representatives, in turn, must handle the notice carefully, because a defective notice can extend the clock.
Lawful ways to plan around the elective share
You cannot draft a clause that says “my spouse gets nothing and may not elect.” Florida ignores it. But there are legitimate, statute-blessed strategies that high-net-worth couples use, ideally with full transparency between spouses.
1. The prenuptial or postnuptial waiver
The cleanest tool is a written waiver. Under § 732.702, a spouse may waive the elective share, along with homestead and other spousal rights, in a valid marital agreement. A prenuptial agreement does not require financial disclosure to be enforceable on these spousal rights, but a postnuptial (after the wedding) generally does require fair disclosure. For second marriages where each spouse arrives with separate wealth and children from a prior relationship, a properly drafted waiver is usually the centerpiece of the plan.
2. Funding the share with a qualifying marital trust
You do not have to hand the survivor 30% outright. Florida allows the share to be satisfied with an “elective share trust” or qualifying income interest, letting you control the ultimate disposition while still honoring the spouse’s economic right. This keeps assets in trust for the survivor’s lifetime and then directs the remainder to your own children, exactly the result blended families want. The structure must meet statutory requirements to receive full or partial credit, so the drafting matters.
3. Irrevocable transfers outside the lookback
Because the elective estate reaches transfers made within one year of death and transfers where the decedent kept strings attached, completed irrevocable gifts made well in advance, with no retained control, can fall outside the share. This is the same machinery used in advanced asset-protection and long-term-care planning. For instance, the irrevocable trust techniques discussed in the context of a rely on relinquishing control to move assets out of an individual’s reach, and parallel reasoning applies when insulating property from a future elective-share claim. The trade-off is real: to put assets beyond a spouse’s elective reach, you generally must put them beyond your own control too.
4. Coordinated beneficiary and entity planning
Closely held business interests, FLPs, and LLC membership units can be structured so that valuation and transfer restrictions reduce what flows into the elective estate, when done for legitimate business purposes and not as a sham to defraud the spouse. Income-stream tools, such as a arrangement in other planning contexts, illustrate how a retained or directed income interest can be designed to serve a beneficiary while keeping principal on a chosen path. The Florida analysis differs, but the principle, separating who enjoys income from who eventually owns principal, is the same lever.
The traps that catch affluent families
Most elective-share disputes are not about whether the right exists. They are about avoidable mistakes:
- Assuming a revocable trust defeats it. It does not. The living trust is fully inside the elective estate.
- Last-minute transfers. Moving assets within a year of death almost always pulls them back in and can look like fraud on the spouse.
- A stale or invalid prenup. Agreements signed under pressure, without counsel, or without required disclosure (for postnuptials) get thrown out, leaving the survivor’s full 30% intact.
- Ignoring homestead. Florida’s constitutional homestead protections operate alongside the elective share and can override how you devise your residence. The two rights interact, and the home is often the largest asset.
- Forgetting the survivor’s deadline. A grieving spouse who delays can forfeit the right entirely, which is its own kind of planning failure when that spouse needed the protection.
How this fits a high-net-worth Palm Beach plan
For families with substantial separate property, a blended household, or a business that must pass to specific heirs, the elective share should be addressed head-on rather than hoped away. The right combination is usually a candid conversation between spouses, a valid marital agreement where appropriate, and trusts structured to satisfy or lawfully limit the share while still protecting the survivor’s standard of living. Done well, no one is surprised at the courthouse.
Our Florida team handles exactly this intersection of marital rights, probate, and asset protection. You can review our , learn how these documents fit together on our wills page, and understand the court process on our Florida probate overview. When you are ready, contact our office to map the strategy to your family.
This article is general information, not legal advice. The elective share statutes contain detailed valuation and procedural rules, and outcomes depend on your specific facts. Consult a licensed Florida estate planning attorney before acting.
Frequently Asked Questions
How much is the elective share in Florida?
The elective share equals 30% of the deceased spouse’s elective estate under Florida Statutes section 732.2065. The elective estate is broadly defined and includes far more than just probate assets, capturing revocable trusts, pay-on-death accounts, jointly held property, and certain lifetime transfers.
Can a will or living trust disinherit a spouse in Florida?
No. Florida does not allow a married person to fully disinherit a surviving spouse. A will or revocable trust that leaves the spouse less than 30% can be overridden when the spouse files a timely elective share election. Revocable trust assets are specifically counted in the elective estate, so a living trust does not avoid the right.
How can high-net-worth couples lawfully plan around the elective share?
The main lawful tools are a valid prenuptial or postnuptial waiver under section 732.702, satisfying the share through a qualifying marital or elective-share trust that controls the remainder, and completed irrevocable transfers made outside the one-year lookback with no retained control. Each has trade-offs and must be drafted to meet statutory requirements.
What is the deadline to claim the elective share in Florida?
A surviving spouse generally must file the election by the earlier of six months after being served the notice of administration, or two years after the decedent’s death, under section 732.2135. Missing the deadline usually forfeits the right entirely, so prompt action and proper notice both matter.
Does the elective share affect Florida homestead property?
Yes. Florida’s constitutional homestead protections operate alongside the elective share and can override how you devise your residence. Because the home is often a family’s largest asset, the two rights must be planned together rather than in isolation.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles .
