One of the biggest surprises in Florida estate planning is that you generally cannot fully disinherit a spouse, even with a clear will saying otherwise. Florida protects surviving spouses through the elective share and homestead rights. To understand these protections, it helps to compare three scenarios a Palm Beach couple might face.
Scenario One: The Will Tries to Leave Out the Spouse
Suppose a Palm Beach resident in a second marriage leaves everything to children from a prior relationship. Florida’s elective share statute (Section 732.2065 and following) lets the surviving spouse claim 30% of the “elective estate” instead of taking what the will provides. Importantly, the elective estate is broad: it reaches beyond the probate estate to include many non-probate assets such as revocable trust property, certain joint accounts, and some transfers made during life. This design specifically prevents someone from emptying the probate estate to shortchange a spouse.
Scenario Two: Homestead and Family Protections Apply
Separate from the elective share, Florida’s constitutional homestead protection (Article X, Section 4) restricts how a married person can leave the primary residence. If the spouse does not properly waive their rights, the surviving spouse is generally entitled to a life estate in the Palm Beach homestead (or, by election, a one-half tenancy in common with the descendants). Florida also provides for a family allowance and exempt property for the surviving spouse and minor children. These rights sit on top of, not instead of, the elective share.
Scenario Three: The Couple Plans Together
The cleanest outcome comes from spouses planning jointly with full disclosure. Florida allows spouses to waive elective share and homestead rights, but only through a valid written agreement, typically a prenuptial or postnuptial agreement, that meets statutory requirements including fair disclosure of assets. For blended families in Palm Beach, a well-drafted marital agreement combined with a trust can honor both the new spouse and children from a prior marriage, avoiding the litigation that an attempted disinheritance often triggers.
How to Make an Elective Share Election
The election is not automatic. The surviving spouse (or their agent or guardian) must file the election with the probate court within strict deadlines, generally tied to service of the notice of administration in the Palm Beach County probate case. Missing the deadline can forfeit the right, which is why surviving spouses should seek advice promptly after a death.
Where Florida Differs
Florida is not a community property state, so there is no automatic 50/50 split of marital assets at death the way some other states handle it. Instead, the 30% elective share plus homestead is the protective floor. Florida also has no state estate or inheritance tax, so these spousal rules are about fairness between family members, not tax planning.
Comparing the Paths
Attempting to write a spouse out invites an elective share claim and homestead litigation. Quiet reliance on default law leaves outcomes to statute. Proactive joint planning, with valid waivers where appropriate, gives a couple the most control over how assets pass.
Consult a Florida Attorney
Elective share calculations, homestead devise rules, and marital waivers are intricate and deadline-driven. Consult a licensed Florida estate planning or probate attorney in Palm Beach before relying on any plan involving a spouse.
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For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles .
