Florida law gives a surviving spouse the right to claim a statutory portion of the deceased spouse’s elective estate, regardless of what the will says. This elective share reaches beyond probate assets into certain trusts, survivorship accounts, and life insurance cash values. The right isn’t automatic. A surviving spouse must file within a strict window, or it disappears.
TL;DR:
- The elective share includes probate assets, certain trusts, survivorship accounts, and life insurance cash values, regardless of estate classification.
- Valuation involves adding all included property, deducting liabilities, and multiplying by the statutory percentage to determine the spouse’s claim.
- The claim can be offset by amounts already received, with priority paid first from probate estate and revocable trusts, followed by other assets.
- Filing must occur within six months of notice or two years of death, or the right to claim is forfeited entirely.
- Disputes often arise over asset valuation and whether lifetime transfers were designed to defeat the spouse’s share, requiring attorney intervention.
Table of Contents
- What Is the Elective Share Under Florida Law?
- How Is the Elective Estate Valued and the 30% Calculated?
- What Counts Toward the Elective Estate, and What Doesn’t?
- How Does the Court Decide Who Pays the Elective Share?
- When Must a Spouse File for the Elective Share?
- What Does an Elective Share Calculation Look Like in Practice?
- What Disputes Come Up, and When Should You Call an Attorney?
- How Jmoorelegal Helps Florida Spouses Claim an Elective Share
- A Probate Attorney’s Take on Elective Share Claims
- Sources
What Is the Elective Share Under Florida Law?
The elective share exists so a surviving spouse can’t be cut out of an estate entirely, no matter what a will or trust document says. Florida’s Probate Code gives every surviving spouse the right to claim a statutory share of the estate instead of accepting whatever the will provides.
Electing doesn’t hand the spouse a specific house or account. It creates a dollar claim against the estate, calculated under Fla. Stat. 732.2065. Qualifying is straightforward in most cases: the person must have been legally married to the decedent at the time of death. The election overrides contrary language in a will or revocable trust and applies regardless of the duration of marriage. Waiving the right requires a valid prenuptial or postnuptial agreement.
How Is the Elective Estate Valued and the 30% Calculated?
Florida arrives at the elective share through a defined statutory process, not a rough estimate. Section 732.2065 sets the amount as a percentage of the elective estate, but reaching that base number takes real work.
The valuation process generally runs like this:
- Add up every included property interest, probate and nonprobate alike.
- Subtract claims, mortgages, liens, and other allowable deductions, as directed under §732.2055.
- Arrive at the net elective estate.
- Multiply that net figure by the statutory percentage to get the raw elective share.
- Reduce the claim by amounts already passing to the spouse outside the will.
Some pieces surprise people. Certain revocable trust interests and the cash surrender value of life insurance policies the decedent owned can count toward the total, even though neither passes through probate court in the usual sense.
What Counts Toward the Elective Estate, and What Doesn’t?
Florida casts a wide net when defining what belongs in the elective estate. Section 732.2035 lists the property interests that count, and it goes well past the assets sitting in a probate file.
Assets typically included:
- Probate estate property titled solely in the decedent’s name.
- Revocable trusts the decedent controlled during life.
- Payable on death and transfer on death accounts and securities.
- Joint accounts with survivorship rights, at least in part.
- The cash surrender value of certain life insurance policies.
Assets typically excluded or given special treatment include protected homestead property (which passes under its own constitutional rules) and exempt personal property set aside for the surviving spouse and family. Certain charitable lead interests get carve outs too.
Pro Tip: If a spouse retitled major assets into an irrevocable trust or gifted them away shortly before death, don’t assume those transfers are untouchable. Courts scrutinize transactions that look designed mainly to defeat the elective share.
How Does the Court Decide Who Pays the Elective Share?
When the elective share isn’t automatically satisfied by what a spouse already receives, F.S. 732.2075 tells the court exactly where to look next. The statute sets a strict order of priority.
- First, any amounts already paid to or for the benefit of the surviving spouse get credited against the claim.
- Next, Class 1 assets get tapped, primarily the probate estate and revocable trusts the decedent controlled.
- If that’s not enough, Class 2 assets contribute.
- Class 3 assets are the last resort.
Beneficiaries inside a class can be required to contribute proportionally, and that contribution can come as cash or as an in kind transfer of property. Multiple trusts often complicate this step, since trust administration documents may allocate assets differently than the statute’s default order assumes, and a court sometimes has to sort out competing instructions between the trust language and the statutory class system.
When Must a Spouse File for the Elective Share?
Timing here is unforgiving. Missing the deadline generally forfeits the right entirely, and Florida gives a surviving spouse a defined window measured from key probate milestones.
The typical filing sequence looks like this:
- Notice of administration gets served on the surviving spouse, starting the clock.
- The spouse (or a Florida probate attorney on their behalf) must file the election within the statutory deadline, generally the earlier of six months after service of that notice or two years after the date of death.
- Supporting documents get gathered: the will, trust instruments, account statements, insurance policy details, and mortgage payoff figures.
- The personal representative and other interested parties are formally served with the election.
Don’t sign any release of estate funds or agree to a distribution before this process runs its course. Once assets move, unwinding them gets far harder.
What Does an Elective Share Calculation Look Like in Practice?
Numbers make this easier to follow than statute language alone. Picture an estate with these components:
- Probate assets (home, bank accounts): $400,000
- Revocable trust value: $300,000
- Survivorship account (spouse’s half already excluded): $50,000
- Life insurance cash surrender value: $50,000
- Less: outstanding mortgage and valid claims: $100,000
Statistic to know: adding those figures and subtracting the mortgage leaves a net elective estate of $700,000. Thirty percent of that is $210,000, the raw elective share.
Now suppose the surviving spouse already receives $60,000 in survivorship assets and a $40,000 life insurance payout outside probate. Those amounts, totaling $100,000, offset the claim, leaving $110,000 still owed from the estate’s remaining assets under the §732.2075 priority order.
What Disputes Come Up, and When Should You Call an Attorney?
Elective share cases rarely stay simple once real money is on the table. The most common fights involve valuation disagreements, especially around trust interests and account cash values, which courts will revalue to reflect fair market value at death rather than accepting a party’s own estimate.
Frequent points of contention:
- Claims that lifetime transfers were designed to defeat the spouse’s share.
- Disputes over ambiguous trust language affecting how assets get classified.
- Assertions that a prenuptial or postnuptial agreement already waived the right.
- Disagreements over whether a claimed deduction (a debt, a lien) is legitimate.
A valid, properly executed marital agreement can bar the elective share entirely, and courts take those waivers seriously when the agreement was signed with full financial disclosure. Careful estate planning with revocable trusts can also shape exposure without crossing into fraud territory, as explained in Why Offshore Trusts Matter for High-Net-Worth Families, though attempts to purposely shortchange a spouse invite a legal challenge.
Pro Tip: Mediation resolves a surprising share of these disputes faster and cheaper than litigation, particularly when the estate involves multiple trusts or a family business that’s hard to value cleanly.
How Jmoorelegal Helps Florida Spouses Claim an Elective Share
Jmoorelegal is the direct, local alternative to hiring a distant firm that treats your case like a file number. Backed by 85 years of combined experience, the firm’s estate planning and probate practice handles elective share claims from the first document review through filing or settlement, with a mediation certified attorney available when negotiation makes more sense than a courtroom fight.
A typical engagement starts with gathering the will, trust documents, and account records, then calculating the elective estate under Florida’s statutory formula. From there, the firm files the election or negotiates a resolution directly with the personal representative, using mediation to keep costs down where the parties are willing to talk. If your case also touches property division or a related family law issue, that gets handled under one roof. Brevard County residents get a free initial consultation and direct access to the attorney handling their case, not a rotating cast of associates. Contact the Estate Planning & Probate team today to find out what your elective share is actually worth before any deadline passes.
A Probate Attorney’s Take on Elective Share Claims
Most people wait too long to act on an elective share, usually because grief makes paperwork feel unbearable. That delay is the single biggest reason valid claims get lost. The six month clock doesn’t pause for mourning, and by the time some spouses call an attorney, assets have already moved and the negotiating position has weakened considerably.
Start collecting documents immediately: the will, any trust instruments, recent account statements, and insurance policy pages. Never sign a release of estate funds before those documents are in a lawyer’s hands. Local counsel matters here more than people expect, because valuation disputes over trust interests and life insurance cash values often hinge on records held by local banks, insurers, and financial advisors who respond faster to an attorney they already know. Mediation, when both sides are willing, resolves these disputes for a fraction of what a contested probate battle costs.
— John
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
Sources
- SECTION 732.2055. Valuation of the elective estate. — Florida Statutes
- F.S. 732.2075 — Sources from which elective share payable; abatement (2025)
- Fla. Stat. §732.2035 — Property entering into elective estate
