Under Florida law, a surviving spouse cannot be disinherited by his/her spouse. The provision, known as the Spousal Elective Share, entitles the surviving spouse to a portion of the deceased spouse’s estate, no matter what is in the decedent’s will or trust.
If you are married or plan to be married, you should understand the elective share rule and know how it can impact you, your spouse, and your respective estate plans. This post provides an overview of the law, and answers to frequently asked questions.
How Much Is A Surviving Spouse Entitled To?
Florida Statute 732.201 states that the surviving spouse is entitled to no less than 30% of the deceased spouse’s augmented estate. Of course, a married person may may leave more than that to the spouse. If a married person dies without an estate plan, Florida intestacy laws apply, in which case the survivor will usually end up with more than 30% of the estate. You can read the full scope of what the surviving spouse is entitled to here.
What Is The Augmented Estate?
The decedent’s augmented estate, also known as the elective estate, consists of the decedent’s probatable assets, but also includes other assets that may pass outside probate. Example of those assets include but are not limited to:
- The interest the decedent had in homestead property
- Any securities and accounts that are registered as payable on death, transfer on death, in trust for, or which are co-owned with rights of survivorship with the spouse.
- The interest the decedent had in any property that was owned as joint tenants with rights of survivorship with the surviving spouse, or tenancy by the entirety.
- Funds and property in a revocable trust
- Benefits from any retirement fund or pension
- Assets held in joint tenancy with anyone
- Retirement plans – IRAs, 401(k)s, etc.
- Cash surrender value of insurance policies (based on the value the day before the death of the decedent)
Do Liabilities Of The Decedent Affect The Elective Share?
Yes. The augmented estate is calculated by deducting any valid claims against the decedent’s estate, and obligations such as liens and mortgages. However, the spouse’s elective share takes priority over shares to beneficiaries mentioned in the decedent’s will or revocable trust, or to other beneficiaries under Florida intestacy law.
Can A Person Disinherit The Spouse Through A Will Or Trust?
No. It does not matter what the decedent’s will or trust says. The surviving spouse is entitled to the elective share regardless of provisions to the contrary in the decedent’s will or trust. The elective share also overrides any arrangement the decedent has used to pass property to someone other than the spouse – for example, a beneficiary through rights of survivorship.
Does The Elective Share Apply If Spouses Are Estranged, Separated, Or In The Process of Getting Divorced?
Yes. The rule applies unless there has been an actual dissolution of the marriage prior to death.
Does the Duration of The Marriage Impact the Elective Share?
No. Whether the marriage lasted 3 months or 30 years prior to the spouse’s passing, the spouse can demand an elective share.
Can A Spouse Waive His/Her Elective Share Rights?
Yes. A person can waive his/her right to an elective share of a spouse’s estate with a valid prenuptial or postnuptial agreement. This is common in second marriage situations when spouses have children from prior marriages, and each spouse wants the bulk of his/her estate to go to his/her own children. It should be noted that in some cases, a spouse may decide later on to rescind the pre- or post-nuptial agreement and make plans for the survivor to inherit more than just the elective share.
How Does A Surviving Spouse Go About Claiming The Elective Share?
The surviving spouse must file for the elective share within 6 months of receiving notice that the deceased spouse’s estate has been admitted to probate, or within two years of the spouse’s death, whichever comes first.
Can Beneficiaries Object To The Elective Share?
Yes. Once the survivor files a demand for the elective share, beneficiaries can file an objection with the probate court. They have a 20-day window in which to file.
Caveat: Pretermitted Spouse’s Rights
If a deceased spouse did not execute a will since marrying, and there is a probate of his/her estate, the surviving spouse is entitled to 50% of the spouse’s estate. The surviving spouse is known as the “pretermitted spouse.”
Read the Florida statutes on elective share here.
The Karp Law Firm Can Help
The attorneys of the Karp Law Firm can help you if you are a personal representative administering an estate and handling a claim for an elective share, or if you are planning your own estate. Call us for a consultation at (561) 625-1100.
