Florida Law Gives Spouse a Share of the Estate, Even if Disinherited

– In Florida, the surviving spouse has the right to claim a portion of the deceased spouse’s estate, regardless of what is written in the will.
– This law, known as the elective share statute, was created in 1975 to ensure that the surviving spouse and children are not left without means after the death of the other spouse.
– The surviving spouse can elect to receive 30% of the deceased spouse’s elective estate, which can be larger than the probate estate.
– The elective estate includes the entire probate estate, the decedent’s interest in the protected homestead, ownership interest in various accounts and properties, and properties with some limitations.
– The elective share is a floor, not a ceiling, and is in addition to other property received by the surviving spouse, such as protected homestead and exempt property. – Exclusions from the elective estate in Florida include irrevocable transfers of property before marriage, transfers with adequate consideration, and transfers made with spousal consent.
– The surviving spouse can open a probate and opt for their elective share, even if the majority of the decedent’s assets pass outside of probate.
– A pre-or post-nuptial agreement can eliminate the right to the elective share.
– The surviving spouse must make their claim within six months of receiving notice of probate administration, or within two years of the decedent’s death. If the marriage ended in divorce, the surviving spouse cannot opt for the elective share. 1. Florida’s elective share laws are complex and may require consultation with an attorney.
2. Disinheriting a spouse may require legal agreement or working with an estate planning attorney to limit the size of the elective estate.
3. George J. Taylor is a partner in Brinkley Morgan’s Estate and Trust Litigation and Business Litigation practice groups in Fort Lauderdale and Boca Raton, Florida.

Florida’s Elective Share Gives ‘Disinherited’ Spouse a Piece of the Estate