Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of a deceased spouse’s “elective estate,” regardless of what the will or trust says. Codified at Florida Statutes Chapter 732, Part II (sections 732.201 through 732.2155), it exists so that a person cannot be entirely disinherited by their husband or wife. Because the elective estate reaches far beyond the probate estate — sweeping in revocable trusts, certain jointly held property, and some lifetime transfers — it is one of the most consequential and most misunderstood pieces of any Florida estate plan.
If you are an adult child helping an aging parent organize their affairs, the elective share matters whether your parent is the one planning to provide for a spouse or the one in a second (or third) marriage who wants to leave the bulk of their estate to children from an earlier relationship. Either way, ignoring it invites a probate fight after death. This guide walks through how the right works, what counts toward the 30%, the deadlines that make or break a claim, and the legitimate ways to plan around it.
What the Florida elective share actually guarantees
Under section 732.2065, a surviving spouse is entitled to an amount equal to 30% of the elective estate. This is a floor, not a ceiling. If the will or trust already leaves the spouse more than 30%, the elective share adds nothing. The right only bites when a spouse has been left less than that statutory minimum — or left out entirely.
Two points trip people up immediately. First, the elective share is elective: the surviving spouse has to affirmatively claim it. Doing nothing forfeits it. Second, it is calculated against the elective estate, a deliberately broad construct that is much larger than the assets passing through probate. A parent who funded a revocable living trust precisely to avoid probate has not avoided the elective share — the trust is pulled right back in.
It is also worth separating the elective share from two other Florida spousal protections that often get tangled together:
- Homestead. A surviving spouse has separate constitutional and statutory rights in the marital homestead (sections 732.401–732.4015), including a life estate or, by election, an undivided one-half interest. Homestead is its own analysis and is not part of the 30% calculation in the same way other assets are.
- Family allowance and exempt property. Sections 732.402 and 732.403 give the spouse (and certain children) up to $18,000 in family allowance and rights to exempt personal property, on top of — not instead of — the elective share.
For a parent in a blended family, these layered protections mean a spouse is rarely as easy to “cut out” as a homemade will suggests.
What counts in the elective estate
Section 732.2035 is the engine of the statute. It lists the categories of property that are added together to form the elective estate against which the 30% is measured. In broad terms, the elective estate includes:
- The decedent’s probate estate (what passes under the will or by intestacy).
- Property in a revocable trust — the classic “living trust” used to avoid probate.
- The decedent’s ownership interest in property held in certain pay-on-death, transfer-on-death, and survivorship accounts and joint tenancies.
- The net cash surrender value of life insurance on the decedent’s life.
- Amounts in qualified and other retirement plans, subject to the statute’s valuation rules.
- Certain property the decedent transferred during the marriage while retaining the right to income or possession, or the power to revoke or revest title.
- Property transferred within one year of death, above the federal gift-tax annual exclusion, that the decedent gave away without adequate consideration.
The takeaway for families is blunt: relabeling assets — moving money into a trust, adding a child as a joint owner, naming a non-spouse beneficiary on an IRA — usually does not defeat the elective share. Florida’s legislature anticipated exactly those maneuvers and reached through them.
How the share gets satisfied
Once the elective estate is valued and 30% is calculated, section 732.2075 sets an order of who contributes to satisfy the claim. Property already passing to the spouse — outright bequests, the spouse’s interest in joint property, beneficiary designations naming the spouse — is credited first. Only the shortfall is then collected proportionally from other recipients. So a spouse who already inherits, say, 22% does not also receive a full 30%; the spouse receives the additional 8% needed to reach the floor.
The deadlines that decide everything
The elective share is unforgiving on timing, and missed deadlines are the single most common reason a valid claim dies. The surviving spouse (or the spouse’s attorney-in-fact or guardian) must file the election within the earlier of:
- Six months after service of the notice of administration on the spouse, or
- Two years after the decedent’s death.
The court can extend the deadline for good cause if a request is made before the period runs, but no one should count on that. For the adult child managing a surviving parent’s affairs, the practical rule is simple: the moment the other parent dies and a probate is opened, the election clock is running. Get a Florida probate lawyer involved early, because once the window closes it does not reopen. You can read more about how Florida probate timelines work on our Florida probate overview.
Planning around the elective share — the legitimate ways
Plenty of clients, especially those entering second marriages later in life, want to provide for a new spouse and preserve an inheritance for children from a prior marriage. The elective share is not an obstacle to that goal; it just forces the planning to be honest and documented. There are several lawful tools.
1. A valid spousal waiver (prenuptial or postnuptial agreement)
The cleanest way to plan around the elective share is to plan it away by agreement. Section 732.702 expressly allows a spouse to waive the elective share — along with homestead, family allowance, exempt property, and intestate rights — through a written contract signed by the waiving spouse. A waiver signed before marriage (a prenuptial agreement) is generally valid without any financial disclosure. A waiver signed after marriage (a postnuptial agreement) requires fair and reasonable disclosure of the other spouse’s assets to be enforceable.
For blended families, a well-drafted prenuptial agreement is often the difference between a smooth administration and a contested one. The agreement should be specific — naming the elective share by statute — rather than relying on vague “each keeps their own property” language.
2. Give the spouse the share in a controlled form
The statute is satisfied by value, and Florida law permits the spouse’s share to be funded with an interest in a qualifying trust rather than a check. A properly structured marital or elective-share trust — an arrangement conceptually similar to a qualified terminable interest property (QTIP) trust — can pay income to the surviving spouse for life while preserving the remainder for the children. This lets a parent honor the spouse’s economic protection without handing over outright control of the principal that is ultimately destined for the kids.
3. Use lifetime planning that the statute respects
Because transfers within one year of death and retained-interest transfers are pulled back into the elective estate, lifetime gifting only works as a planning tool when it is genuine, completed well in advance, and free of strings. A parent who truly parts with an asset years before death — no retained income, no power to revoke — moves it outside the elective estate. The mistake to avoid is the deathbed transfer dressed up as a gift; the statute is designed to catch it.
4. Coordinate beneficiary designations deliberately
Retirement accounts and life insurance are part of the elective estate, but they are also credited toward the spouse’s share when the spouse is named as beneficiary. Thoughtful designations can satisfy a large portion of the 30% efficiently — for instance, naming the spouse on a life insurance policy while leaving other assets to children — so that the children’s inheritance is disturbed as little as possible. Some families also explore retained life estates on real property to balance occupancy for a surviving spouse against an eventual transfer to children; our colleagues describe one version of that approach in this discussion of home transfers and retained life estates, though Florida homestead rules require separate, state-specific advice.
Special situations adult children should watch for
An incapacitated surviving parent. If your surviving parent lacks capacity, the decision whether to elect the share falls to a guardian or agent under a durable power of attorney — and the court may need to approve it. Whether electing is in the incapacitated spouse’s best interest is a genuine question, especially when Medicaid planning is involved, because a larger elective share can affect benefits eligibility. For families balancing inheritance against long-term-care funding, a pooled income trust and similar needs-based vehicles can be part of the conversation; the specific tools differ by state, so coordinate with counsel licensed where the spouse lives.
Out-of-state property and recent moves. Snowbirds who split time between Florida and the North should confirm domicile. The elective share applies when Florida is the decedent’s domicile; a parent who only winters here but is domiciled elsewhere may be governed by another state’s spousal-protection regime entirely.
The “I’ll just leave them a dollar” will. A symbolic bequest does not defeat the elective share. Neither does leaving everything to a child, a trust, or a charity. If the goal is to limit a spouse’s claim, the only reliable instruments are a valid waiver or a structured share — not clever language in a homemade will.
Bringing it together
The Florida elective share rewards planning and punishes improvisation. A parent who wants to protect a spouse can rest on the statute’s default 30% or, better, fund that protection deliberately through trusts and beneficiary designations. A parent who wants to plan around it for the sake of children from a prior marriage has clear, lawful paths — chiefly a properly executed waiver — but only if the documents are drafted with the statute in mind and signed while everyone has capacity. Either way, the worst outcome is the one that happens by accident: a default election fight that drains the estate and divides the family.
Our South Florida estate planning attorneys help blended families structure plans that respect a surviving spouse’s rights while protecting the next generation’s inheritance. To start, review our wills and estate planning services, learn more about the firm’s Florida estate planning practice, or contact our office to discuss your parent’s situation before a deadline forces the issue.
This article is general information about Florida law and is not legal advice. The elective share statutes are detailed and fact-specific; consult a licensed Florida estate planning or probate attorney about your circumstances.
Frequently Asked Questions
How much is the elective share in Florida?
Under Florida Statutes section 732.2065, the surviving spouse’s elective share equals 30% of the decedent’s elective estate. The elective estate is broader than the probate estate and includes revocable trust property, certain joint and survivorship accounts, life insurance cash value, retirement plan amounts, and some lifetime transfers.
Can a will disinherit a spouse in Florida?
No, not unilaterally. A Florida will cannot defeat the surviving spouse’s elective share, homestead rights, family allowance, or exempt property. The only reliable way to limit those rights is a valid written waiver, such as a prenuptial or postnuptial agreement that complies with section 732.702.
What is the deadline to file for the elective share in Florida?
The election must be filed within the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s death. A court may grant an extension for good cause only if requested before the deadline runs, so families should act quickly once probate opens.
Does a revocable living trust avoid the Florida elective share?
No. Section 732.2035 expressly includes revocable trust property in the elective estate. Funding a living trust avoids probate but does not remove those assets from the 30% calculation, and the same is true for many joint accounts and beneficiary-designated assets.
How can I provide for my spouse but still leave assets to my children?
Common approaches include a valid spousal waiver, funding the spouse’s share through a marital or QTIP-style trust that pays income for life while preserving principal for children, and coordinating beneficiary designations so assets the spouse receives count toward the 30%. A Florida estate planning attorney can structure a plan that satisfies the statute while protecting the children’s inheritance.
For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.