Florida Elective Share Statute Changes

The Florida Elective Share statutes has made it almost impossible to disinherit a spouse from your estate outside of a premarital, prenuptial, or post-nuptial agreement. In 1999, the Florida Legislature enacted what we now call the Florida Elective Share Statute, which was amended in 2016 and 2017 to provide even more protections to the surviving spouse.

The objective of the Florida Elective Share Statute is to protect surviving spouses by ensuring that they have a right to part of their spouse’s estate upon their death. The Elective Share equals 30% of your spouse’s elective estate, which comprises the spouse’s assets. These assets include probate assets and non-probate assets such as 401(k)s, IRAs, life insurance policies, pay upon death accounts, and revocable trusts.  See Florida Statute 732.2035.

However, you must file your election to take the Elective Share within six months of receiving notice of administration of the estate or within two years after the decedent’s death. Sometimes if might be appropriate to move for an extension of time to file an elective share; however, the absolute latest date in which you can file your election is within two years from death of your spouse. Ironically, this is the same time that a normal creditor is given to file a claim in an estate.

The following is an example of how an elective share might work:

Husband passes away having $1,000,000 in assets. This comprises a homestead owned jointly with his wife worth $100,000, a life insurance policy of which the wife is the named beneficiary with a cash value of $100,000, and a 401(k) which also names his wife as the beneficiary worth $75,000. The remainder of his assets are in cash. If the wife took an elective share, she would get 30% of his assets, which would be $300,000. The $300,000 would comprise $50,000 from the homestead, $100,000 from the life insurance policy, and $75,000 from the 401(k). The remaining $75,000 would be taken out of the cash assets of the estate.

As seen, the elective share considers assets that the wife inherits outside of the husband’s probate estate. In the example, that would be the husband’s interest in the jointly held homestead, life insurance policy and 401(k).

It is key to note that if the husband’s Last Will and Testament provided the wife with more than $300,000, then her inheritance would not be capped at that. The wife would still be entitled to what was provided for her in the will. However, this was not always the case. Before 2016, the elective share was treated as a cap.  This created an issue when it took longer than six months to inventory a spouse’s estate and determine whether it is in the best interest of the surviving spouse to take the elective share.

It is a very difficult time when any family member passes away, and relations among surviving family members can be strained as everyone morns the loss of their loved one. That is why it is so imperative to have an attorney who can act as a neutral third party to help you determine what is the best course of action for your future. If you are forced to litigate your right to receive the elective share of your spouse’s estate, you will be entitled to attorney fees and costs. To speak to an experienced elective share attorney contact the Law Office of David M. Goldman, PLLC.


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