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Rights of a Surviving Spouse: Florida’s Elective Share

On Behalf of | May 29, 2020 | Probate, Probate Litigation |

In Florida, a surviving spouse has certain protections in the event his or her spouse dies and does not leave the surviving spouse an acceptable portion of the deceased spouse’s assets. In simple terms, these protections prevent a surviving spouse from being totally left out.

One of these protections is known as the “elective share” and is set forth in Section, 732.201 Fla. Stat. This section which provides:

The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share….

Section 732.2065 Fla. Stat.provides that the elective share which a surviving spouse may elect to receive is an amount equal to 30 percent of the elective estate”  So to determine the elective share, first the elective estate must be determined. So what does the elective estate consist of? In other words, of what is it that the surviving spouse may elect to receive 30%?

Section 732.2035 Fla. Stat. entitled “Property entering into elective estate” sets forth the assets that are taken into account in determining the elective estate. They include:

(1) The decedent’s probate estate;

(2) The decedent’s interest in property in protected homestead;

(3) The decedent’s ownership interest in accounts or securities designating “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of       survivorship;

(4) The decedent’s fractional interest in property held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety;

(5) Certain transfers which were revocable by the decedent;

 (6) The decedent’s interest in the net cash surrender value of life insurance;

 (7)  Public or private pension, retirement, or deferred compensation plan, or any similar arrangement; this would include an IRA and a 401k;

 (8) Certain property transfers during the 1-year period preceding the decedent’s death;

The assets listed above are valued as described by statute (which will be the subject to a later blog entry). Once valued, they are totaled, certain estate expenses are subtracted, and the resulting amount determines the elective estate. This value is then multiplied by 30% and the result is the elective share to which the surviving spouse is entitled.

A simple example will help understand how the elective share works. Thomas and Rebecca have been married for eight years. Thomas has two adult children from a prior marriage. Thomas dies suddenly of a heart attack. At the time of his death, Thomas owned an investment account in his sole name and two IRA’s. The investment account was valued at $300,000 and had a POD (“pay on death”) designation naming Thomas’s two children. The IRA’s, valued at $150,000 and 200,000 respectively, also named Thomas’s two children as beneficiaries. After his death Rebecca learns that the investment account and the IRA’s go to Thomas’ children and Rebecca is to get nothing. Rebecca is not happy about this and consults an experienced Florida probate attorney. She learns that she has the right to receive the statutory elective share. In this example, the total elective estate is valued at $650,000. As a result, Rebecca is entitled to elect to receive 30% of that—$195,000. Some might say that that’s not a lot but it sure beats $0.

Calculating and protecting a surviving spouse’s rights under Florida’s elective share statute can be challenging. There are statutory provisions which must be followed and deadlines to which you must adhere. Rather than taking this on personally, a surviving spouse should retain an experience probate attorney to advise and represent him or her. Not only is this a wise step but the applicable statute provides that in certain circumstances, the surviving spouse can be awarded payment of attorney’s fees and costs through the proceedings.


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