Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. It is set out in Florida Statutes sections 732.201 through 732.2155, and it exists so that a spouse cannot be disinherited outright. For blended families and second marriages in Palm Beach County, this rule is often the single biggest reason a carefully drafted plan still ends up in litigation.
I have sat across the table from too many adult children who assumed Dad’s will controlled everything, only to learn that their father’s second wife could override large parts of it by filing a single election. I have also represented surviving spouses who were quietly written out and had no idea they held a powerful statutory card. This article explains how the elective share actually works in Florida, what counts toward the 30%, and the legitimate ways couples plan around it.
What Is the Florida Elective Share?
The elective share is the surviving spouse’s right to take a fixed percentage of the estate instead of accepting whatever the deceased spouse’s estate plan provided. Under Section 732.2065, that percentage is 30% of the elective estate. The spouse “elects” against the will, hence the name.
This is not the same thing as the homestead protections, the family allowance, or exempt property, although those rights often travel together. The elective share is its own distinct claim, and it can be asserted even when the will says the spouse gets nothing.
A few features make Florida’s version particularly potent:
- It reaches beyond the probate estate. The “elective estate” includes far more than assets that pass through probate.
- It cannot be casually defeated. Moving assets into a revocable trust, a payable-on-death account, or joint ownership generally does not put them out of reach.
- It is a personal right. Only the surviving spouse (or their guardian or attorney-in-fact under specific conditions) may exercise it, and there is a hard deadline.
Why blended families feel this most
In a long first marriage, spouses usually leave everything to each other, so the elective share never comes up. In a second marriage, the goal is often the opposite: each spouse wants to provide for their own children from a prior relationship while still taking care of the new spouse. That tension is exactly where the elective share bites. A husband who leaves his entire estate to his children and only a modest bequest to his second wife may discover that Florida law gives her the right to claim nearly a third of his combined assets anyway.
What Counts in the Elective Estate?
This is where many people, and frankly some attorneys, get tripped up. The elective estate is defined broadly in Sections 732.2035 and 732.2045. It is designed to capture the value a person controlled or could have reached during life, not just the leftovers in their probate file.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in protected homestead (subject to specific valuation rules).
- Property in a revocable (living) trust.
- Pay-on-death and transfer-on-death accounts.
- Jointly held property and Totten trust accounts, to the extent of the decedent’s contribution or ownership.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Amounts in pension, retirement, and similar plans.
- Certain property transferred within one year of death without adequate consideration.
Section 732.2045 then lists what is excluded, such as property the spouse already consented to in writing, certain term life insurance proceeds, and assets passing to the surviving spouse. The arithmetic is rarely intuitive, and the statute layers in valuation rules, satisfaction rules, and proration formulas under Section 732.2075 and following. Calculating the share correctly almost always requires running the numbers, not eyeballing them.
A practical example
Suppose a Palm Beach retiree has a $1.2 million brokerage account in a revocable trust, a $400,000 home, and a $600,000 IRA naming his children. His will leaves his second wife $50,000. Many families assume the IRA and the trust are “off the table” because they pass outside probate. They are wrong. Most of those assets fold into the elective estate, and 30% of that combined figure dwarfs the $50,000 bequest. The wife’s election could reshape the entire distribution.
How and When a Spouse Claims It
Timing is everything. Under Section 732.2135, the surviving spouse must file the election with the probate court within the earlier of two deadlines: six months after being served with a copy of the notice of administration, or two years after the decedent’s death. Miss the window and the right is generally gone. Extensions are possible only in narrow circumstances.
The election is filed in the probate proceeding, and the court then determines the amount and orders contribution from the various assets that make up the elective estate. Because the share can come from trust assets, joint accounts, and beneficiary-designated property, third parties who received those assets may have to contribute. That is one reason these disputes get contentious fast. If you are an executor, a trustee, or a beneficiary navigating one of these claims, our Florida probate process page walks through how administration unfolds alongside an election.
Planning Around the Elective Share (Legitimately)
“Planning around” the elective share does not mean cheating a spouse out of a legal right. It means structuring an estate so that both spouses understand and agree on the outcome in advance, and so the plan survives challenge. Here are the tools that actually work in Florida.
1. Prenuptial and postnuptial agreements
The cleanest path is a marital agreement waiving the elective share. Section 732.702 expressly allows a spouse to waive elective share rights, homestead rights, and more, either before or after marriage. A prenuptial agreement can be entered without financial disclosure if it is signed before marriage; a postnuptial waiver generally requires fair and reasonable disclosure of the other spouse’s assets. Get this wrong, and the waiver can be set aside, so precision matters.
2. The elective share trust
Florida lets you satisfy the elective share with a qualifying trust rather than an outright transfer. Under Sections 732.2025 and 732.2095, property passing in an “elective share trust” can be credited toward the spouse’s 30%. This is gold for second marriages: the surviving spouse receives income and support for life, but the remainder passes to the first spouse’s children when the survivor dies. It honors the spouse’s statutory right while keeping the principal in the bloodline. Done well, it is the difference between a lifelong family rift and a plan everyone can live with.
3. Coordinated lifetime gifting and titling
Because the elective estate reaches back one year for certain transfers, last-minute gifting is not a reliable workaround and can look like bad faith. Thoughtful, well-documented lifetime planning, done years in advance and ideally with the spouse’s written consent, is far more durable. A spouse who knowingly consents in writing to a particular transfer can remove that asset from the calculation under the exclusion rules.
4. Life estates and retained interests
For couples who want the surviving spouse to keep living in the marital home while ultimately passing it to children, a retained life estate can be a clean structure. New York practitioners use these constantly; you can see how the mechanics work in this overview of home transfers and retained life estates. Florida homestead rules add their own wrinkles, so the concept has to be adapted carefully here, but the underlying idea, separating lifetime use from final ownership, is exactly the kind of thinking blended families need.
5. Provide for the spouse outside the contested assets
Sometimes the simplest answer is to fund the spouse’s share with a dedicated bucket, such as a life insurance policy or a particular account, so the children’s inheritance is insulated. For spouses who may need long-term care or have benefits considerations, more specialized vehicles come into play. Income-only structures like a pooled income trust illustrate how an estate plan can support a vulnerable spouse without handing over a lump sum that would be eaten by the elective share or by care costs.
What Happens If You Do Nothing
If you draft a will that ignores the elective share, you have not avoided it; you have simply guaranteed that your family will fight about it. The surviving spouse files an election, the court orders contribution, and assets you intended for your children are clawed back to make up the 30%. Beneficiaries who already received trust distributions or account balances can be forced to give some back. Legal fees climb. Relationships fracture.
The good news is that none of this is inevitable. With honest conversations and a properly drafted plan, a second-marriage couple in Palm Beach can protect the surviving spouse and protect the children, on terms everyone agreed to while both spouses were alive. That balance is the entire point of estate planning for blended families. To get started, our wills and estate planning page explains how we build plans designed to hold up, and you can always reach us through our contact page.
If part of your family or assets sit outside Florida, coordination matters. Our colleagues handle Florida-focused work through Morgan Legal’s Florida estate planning practice, and multi-state families benefit from aligning their documents across jurisdictions rather than treating each state in isolation.
The Bottom Line
Florida’s elective share gives a surviving spouse a guaranteed 30% of a broadly defined elective estate, and it is hard to defeat by accident. For first marriages it rarely surfaces. For second marriages and blended families, it is the rule that quietly governs everything. Plan with it openly, use marital agreements and elective share trusts where appropriate, and you turn a litigation trigger into a settled, fair result.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s elective estate under Florida Statutes section 732.2065. The elective estate is broadly defined and includes far more than just probate assets, such as revocable trust property, pay-on-death accounts, certain jointly held property, retirement plans, and the net cash surrender value of life insurance.
Can my spouse claim the elective share even if my will leaves them nothing?
Yes. The entire purpose of the elective share is to prevent a spouse from being disinherited. Regardless of what your will or trust says, a surviving spouse can elect to take 30% of the elective estate, unless they validly waived that right in a prenuptial or postnuptial agreement.
What is the deadline to file for the elective share in Florida?
Under section 732.2135, the surviving spouse generally must file the election within the earlier of six months after being served with the notice of administration, or two years after the decedent’s death. Missing the deadline usually forfeits the right, with only narrow exceptions.
Can a prenuptial agreement waive the Florida elective share?
Yes. Section 732.702 permits a spouse to waive elective share, homestead, and other spousal rights before or after marriage. A prenuptial waiver can be signed without financial disclosure, but a postnuptial waiver generally requires fair and reasonable disclosure of assets to be enforceable.
What is an elective share trust and why does it help blended families?
An elective share trust, recognized under sections 732.2025 and 732.2095, lets you satisfy the spouse’s 30% with a qualifying trust instead of an outright gift. The surviving spouse receives lifetime income and support, while the remaining principal passes to your children when the spouse dies, balancing both interests.
For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles Medicaid asset protection trusts.