Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

The Florida elective share gives a surviving spouse the right to claim 30 percent of a deceased spouse’s “elective estate” — regardless of what the will says, what a trust directs, or how much was given away to dodge the result. It is codified in Florida Statutes section 732.2065, and the 30 percent reaches far beyond the probate estate to capture trusts, jointly held property, payable-on-death accounts, and certain lifetime transfers. For a Florida business owner with a succession plan, the elective share is the single most overlooked claim that can blow apart a carefully drafted buy-sell or family transfer.

I have sat across the table from too many heirs who assumed a will was the last word. It usually isn’t — not when there is a surviving spouse who was written out, shortchanged, or simply never accounted for. Below is how the right actually works in Florida, why the “elective estate” is so much bigger than people expect, and the legitimate ways to either honor a spouse or plan around the claim before death.

What the Florida Elective Share Actually Is

Florida, unlike community-property states, does not automatically split marital assets at death. Instead, it gives the surviving spouse a statutory floor. Under section 732.2065, the elective share equals 30 percent of the elective estate of a decedent who dies domiciled in Florida. The surviving spouse may choose to take that 30 percent instead of whatever the estate plan provided. It is an election — a choice the spouse makes, not an automatic distribution.

The point of the statute is to prevent disinheritance of a husband or wife. You cannot leave your spouse a single dollar in your will and expect that to stick. If the spouse elects, the law overrides the document. This is distinct from the homestead and family-allowance protections that also run to a surviving spouse; the elective share stacks on top of its own statutory framework.

It Is the Surviving Spouse’s Right — and Only Theirs

Only a surviving spouse can claim the elective share. Children, business partners, and other heirs have no equivalent right. And the spouse has to be married to the decedent at the moment of death — an ex-spouse, even one in the middle of a divorce that never finalized, may still qualify. That last point ruins more succession plans than almost anything else: the soon-to-be-former spouse is still the spouse until the judgment is signed.

The “Elective Estate” Is Much Bigger Than the Probate Estate

Here is where most people get blindsided. The 30 percent is not 30 percent of what passes under the will. It is 30 percent of an augmented “elective estate” — a deliberately broad pool designed to defeat end-runs around the spouse. Florida law sweeps in assets that never touch probate.

The elective estate generally includes:

• The probate estate — everything that passes under the will or by intestacy.
• Revocable (living) trust assets, including pour-over and self-settled trusts the decedent controlled.
• Property held in joint tenancy or tenancy by the entireties, to the extent of the decedent’s contribution.
• Pay-on-death and transfer-on-death accounts, and similar beneficiary-designated assets.
• The net cash surrender value of life insurance on the decedent’s life.
• Amounts in pension, retirement, and deferred-compensation plans.
• Certain property transferred within one year of death, and transfers where the decedent kept the right to income or possession.

That last category is the trap for the clever. If a business owner quietly retitles the company, gifts shares, or moves real estate into an irrevocable structure shortly before death — or keeps a retained interest in it — the value can be pulled right back into the elective estate. Florida’s statute anticipates the obvious dodges. A retained-life-estate arrangement, for example, is a classic planning tool, but the retained interest is exactly the kind of string the elective-share rules look for. (For how retained interests work in a different but related context, see Morgan Legal’s discussion of .)

Why This Matters for Business Succession

Imagine a founder who promised the company to a son and signed a buy-sell agreement to that effect. The founder dies, and the surviving second spouse — who was left a modest bequest — elects against the estate. Because the company’s value is counted in the elective estate, the spouse’s 30 percent claim can force a liquidity crisis: the estate may have to sell shares, borrow, or unwind the buy-sell to satisfy the election. The succession plan was airtight on the operating side and wide open on the marital side.

How a Surviving Spouse Claims the Elective Share

The right is not self-executing. The spouse must affirmatively elect, and the clock is short. Under section 732.2135, the election must be filed by the earlier of:

1. Six months after the surviving spouse (or an attorney or guardian) is served with a copy of the notice of administration; or
2. Two years after the decedent’s date of death.

A spouse can ask the court for an extension before the deadline runs, often while values are still being sorted out, but missing the window without an extension generally forfeits the claim. The election is made by filing a written document with the court and serving interested parties. Once made, the court determines the value of the elective estate, satisfies the share from designated assets in a statutory order of priority, and the spouse is treated as receiving the 30 percent rather than the will’s provision.

If you are the personal representative — or the heir watching this unfold — do not assume silence equals waiver until the deadline has actually passed. And if you are the surviving spouse, the deadline is unforgiving; this is not a “we’ll get to it” matter.

Planning Around the Elective Share — Legitimately

You cannot defeat the elective share by hiding assets or by last-minute transfers; the statute is built to catch those. What you can do is plan with the spouse’s knowledge and consent, or satisfy the share in a way that preserves the business. There are real, durable tools.

1. A Valid Waiver: Prenuptial or Postnuptial Agreement

The cleanest path is a written waiver. Section 732.702 expressly allows a spouse to waive elective-share rights — wholly or partly, before or after marriage — by a written agreement signed in the presence of two subscribing witnesses. A waiver of “all rights” in the other spouse’s property is read to include the elective share.

The critical wrinkle: a waiver signed after marriage requires fair and reasonable disclosure of the other spouse’s assets, unless that disclosure is itself waived in writing. A waiver signed before marriage is enforceable even without full financial disclosure. That distinction — disclosure required postnuptially, not prenuptially — is where many homemade agreements fail. Get the formalities wrong and the “waiver” is worthless when it counts. For business founders entering a second marriage, a properly drafted prenuptial waiver is usually the most reliable protection for the company.

2. Satisfying the Share Without Selling the Business

Florida lets the elective share be satisfied with a qualifying interest in trust rather than a forced cash payout. If you provide for your spouse generously through an “elective-share trust” — an interest that gives the spouse income and access on statutory terms — the value of that interest can count toward the 30 percent. Used well, this keeps voting control and operating assets out of the spouse’s hands while still meeting the statutory floor. It is a way to honor the spouse and protect the enterprise at the same time.

3. Income-Focused and Specialized Trusts

For older clients, a second marriage, or blended-family situations, income-stream planning often does the heavy lifting. Specialized vehicles — including pooled and income-focused trusts — can balance support for a spouse against the goal of moving a business to the next generation. Morgan Legal’s overview of a illustrates the income-preservation concept, and the same logic adapts to Florida planning under the guidance of Florida counsel.

4. Coordinate Every Document, Every Title

Most elective-share disasters are coordination failures, not drafting failures. The will says one thing, the trust another, the beneficiary form a third, and the buy-sell ignores the spouse entirely. Because the elective estate counts non-probate assets, you cannot plan the will in isolation. Review titles, beneficiary designations, the trust, and the business agreements together — and revisit them after every marriage, divorce, or major transaction. Florida estate planning attorneys at handle exactly this kind of integrated review.

If You Are the Surviving Spouse

The election is not always the right move. Sometimes the will leaves you more than 30 percent of the elective estate, and electing would reduce your inheritance. Run the math first. The election is meant as a floor, not a ceiling — you take it only when the plan shorted you. A surviving spouse who elects is not treated as having predeceased the decedent, and the election does not strip away what the spouse would have received if it turns out to be larger. Before you file, get a sober valuation of the entire elective estate, because that number — not the probate inventory — drives your share.

The Bottom Line for Florida Business Owners

The elective share is one of the few claims that can override a will, a trust, and a buy-sell all at once. You cannot ignore it, you cannot quietly transfer your way around it, and your heirs cannot assume it away. But with a valid waiver, an elective-share trust, and documents that actually talk to each other, you can protect a surviving spouse and your business at the same time. The worst outcome is the one I see most: a perfect succession plan undone by a spouse nobody planned for.

If you own a Florida business and want your succession plan to survive a spousal election, start with a proper will and trust review and a candid conversation about waivers. When you’re ready, contact our Miami estate planning team to coordinate the whole picture before it’s tested in probate.

Frequently Asked Questions

How much is the elective share in Florida?

Under Florida Statutes section 732.2065, the elective share is 30 percent of the decedent’s elective estate. The elective estate is broader than the probate estate and includes trust assets, jointly held property, payable-on-death accounts, certain life insurance and retirement values, and some transfers made before death.

Can a spouse waive the Florida elective share?

Yes. Section 732.702 allows a spouse to waive elective-share rights, wholly or partly, before or after marriage, in a written agreement signed in front of two witnesses. A waiver signed after marriage requires fair and reasonable disclosure of assets unless disclosure is waived in writing; a prenuptial waiver is enforceable without that disclosure.

What is the deadline to claim the elective share in Florida?

Under section 732.2135, the surviving spouse must file the election by the earlier of six months after being served with the notice of administration, or two years after the date of death. The court can grant an extension if it is requested before the deadline expires.

Does the elective estate include my business or trust assets?

Generally yes. Florida’s augmented elective estate reaches revocable trust assets, beneficiary-designated accounts, certain lifetime transfers, and the value of business interests. This is why a buy-sell agreement or family business transfer can be disrupted by a spousal election if it was planned without accounting for the elective share.

Should a surviving spouse always elect the 30 percent share?

No. If the will or trust already leaves the spouse more than 30 percent of the elective estate, electing could reduce the inheritance. The elective share is a floor, not a ceiling, so a spouse should value the entire elective estate before deciding whether to file.