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

The Florida elective share is a surviving spouse’s statutory right to claim 30 percent of a deceased spouse’s “elective estate,” even when the will or trust says otherwise. It exists because Florida public policy will not let one spouse cut the other out entirely. Under section 732.2065 of the Florida Statutes, that 30 percent is calculated against a deliberately broad pool of assets that reaches well past the probate estate, which is exactly why it surprises so many real estate owners and their planners.

I have watched this play out from both sides of the table. A widow in Boca Raton who assumed the house and the brokerage account were “hers” because they were jointly titled. Adult children of a second marriage who believed their late father’s revocable trust had safely steered the Florida condo to them. Both were wrong, and both could have avoided a fight with planning done while everyone was still alive. If you own property in Florida, or you are advising a Long Island family that does, the elective share is not a footnote. It is one of the few rules of estate law you genuinely cannot draft your way around with a simple disinheritance clause.

What the Florida Elective Share Actually Is

Florida is not a community property state. Instead, it protects a surviving spouse through the elective share, codified in Part II of Chapter 732. The mechanics are straightforward to state and complicated to apply:

• The surviving spouse may elect to take 30 percent of the elective estate (§ 732.2065).
• The “elective estate” is far larger than the probate estate and is defined in § 732.2035.
• The values are fixed under § 732.2055.
• The election must be made affirmatively and on time, or it is lost.

The point that trips people up: a will that leaves the spouse nothing does not defeat the elective share. Neither does a fully funded revocable trust. The Florida Legislature anticipated those moves decades ago and built an “anti-evasion” structure precisely to sweep non-probate assets back into the calculation. You cannot quietly retitle everything into a trust the week before death and expect the surviving spouse to walk away with their statutory minimum reduced to zero.

What Counts in the Elective Estate

This is where the homestead-and-property crowd needs to pay attention, because the elective estate is asset-agnostic in a way that catches careful planners off guard. Section 732.2035 pulls in, among other things:

1. The decedent’s probate estate — anything passing under the will or by intestacy.
2. The protected homestead, valued under specific rules discussed below.
3. Pay-on-death, transfer-on-death, and in-trust-for accounts, plus securities held in survivorship form.
4. Revocable (living) trusts — the entire value of property the decedent could revoke or amend.
5. Jointly held property, including the decedent’s fractional interest in joint tenancies and one-half of tenancy-by-the-entirety assets.
6. Certain cash-value life insurance and retirement accounts, measured by the decedent’s interest.
7. Property transferred within one year of death for less than full value, with limited exceptions.

Read that list again with a real estate owner in mind. The Florida vacation home, the rental duplex, the survivorship brokerage account funding the mortgage — those are not insulated from the elective share simply because they avoid probate. Avoiding probate and avoiding the elective estate are two entirely different exercises. I have seen sophisticated New York estate plans, built around revocable trusts and TOD designations to skip Surrogate’s Court, do absolutely nothing to limit a Florida spouse’s 30 percent claim. The strategy that works in one context can be inert in the other.

The Homestead Wrinkle

Florida’s homestead rules deserve their own paragraph because they interact with the elective share in a way that genuinely changes outcomes. How much of the protected homestead lands in the elective estate depends on what interest the surviving spouse receives:

• If the spouse takes a life estate in the homestead, or elects a one-half tenants-in-common interest, roughly 50 percent of the net homestead value is counted.
• If the spouse receives a fee simple interest, 100 percent of the net value is counted.

For owners whose Florida home is their single largest asset, this is the difference between a manageable elective-share number and a forced sale. Homestead, constitutional descent restrictions, and the elective share all collide on the same parcel of land, and they do not always point the same direction. If your editorial instinct as a property owner is “the house is the plan,” understand that in Florida the house is also the battleground.

How and When a Spouse Elects

The elective share is never automatic. The surviving spouse — or an attorney-in-fact or guardian acting for them — must file an election with the probate court, and the deadline is unforgiving. Under § 732.2135, the election must be made by the earlier of:

• Six months after service of the notice of administration on the surviving spouse, or
• Two years after the decedent’s date of death.

Miss it, and the right evaporates. I have had to deliver that news to a grieving spouse who waited too long because a relative told them probate “takes care of itself.” It does not. There is a narrow path to an extension if a request is filed within the original window, but no one should plan around a court’s discretion. If you suspect you have been shorted, talk to a probate attorney before the clock runs, not after.

Planning Around the Elective Share (The Legitimate Ways)

“Planning around” the elective share does not mean cheating a spouse. It means structuring an estate so that the 30 percent obligation is anticipated, funded, and not litigated. There are several honest tools, and the right one depends on whether you are protecting the spouse or planning for blended-family fairness.

1. A Properly Drafted Marital Agreement

The cleanest way to alter the elective share is a valid prenuptial or postnuptial agreement that waives or modifies it. Florida courts enforce these when they meet the statutory and case-law standards — fair disclosure, voluntariness, and proper execution. This is the single most reliable lever for second marriages, especially where each spouse arrives with their own children and their own Florida real estate. A handshake understanding is worth nothing here; the waiver must be in writing and done right.

2. Satisfying the Share With Specific Assets

The statute lets the elective share be satisfied with property passing to or for the benefit of the spouse, including assets placed in a qualifying elective-share trust. Done correctly, this lets a planner direct which assets fund the spouse’s 30 percent — keeping the family business or a specific parcel intact while the spouse is made whole from other holdings. The drafting must track the statute precisely, or the credit is lost.

3. Lifetime Gifting With Care

Gifts made well before death, for full value or under recognized exceptions, can shrink the elective estate. The trap is the one-year lookback: transfers for less than adequate consideration within a year of death are clawed back. Timing and documentation matter, and aggressive deathbed transfers invite exactly the litigation you are trying to avoid.

4. Coordinated Multi-State Planning

This is the one Long Island families miss most. A New York domiciliary who owns a Florida home needs a plan that respects both jurisdictions. New York has its own spousal “right of election,” but the rules, percentages, and asset definitions are not Florida’s. Coordinating the documents — wills, trusts, deeds, and beneficiary designations across two states — is the work. For the New York side of that equation, our colleagues handle exactly these issues; see Morgan Legal’s guidance on and on drafting a sound . For property and probate sitting in Florida, the firm’s Florida estate planning practice addresses the elective share head-on.

Common Mistakes I See

A few patterns repeat often enough to name them:

• Believing a revocable trust is a shield. It funds the elective estate dollar for dollar.
• Relying on joint titling. Survivorship accounts and joint deeds are counted, not excluded.
• Treating the homestead as untouchable. It is counted, and how the spouse takes it changes the math.
• Skipping the prenup in a second marriage. Without a valid waiver, the 30 percent stands.
• Missing the election deadline. Six months or two years, whichever comes first — and grief is not an extension.

Whether you are the spouse who needs protection or the planner trying to keep a blended family out of court, the answer is the same: address the elective share on purpose, in writing, before death. The families who do are the ones who never end up in front of me. To start that conversation, review our related guidance on wills and Florida probate, or reach out through our contact page.

The Bottom Line

Florida will not let you disinherit a spouse by accident or by clever titling. The elective share guarantees 30 percent of an elective estate that reaches into trusts, survivorship accounts, and the homestead itself. You can plan around it — through marital agreements, targeted funding, careful gifting, and coordinated multi-state documents — but only deliberately and only in advance. For real estate owners with assets and family on both sides of the Florida-New York line, that planning is not optional. It is the difference between a transfer that honors your intent and a courtroom fight that spends down the very estate you worked to build.

Frequently Asked Questions

How much is the Florida elective share?

Under Florida Statute 732.2065, the elective share equals 30 percent of the decedent’s elective estate. The elective estate is broader than the probate estate and includes assets such as revocable trusts, pay-on-death and survivorship accounts, jointly held property, the protected homestead, and certain transfers made within one year of death.

Can a revocable living trust avoid the Florida elective share?

No. Property in a revocable (living) trust is pulled back into the elective estate under Section 732.2035 because the decedent retained the power to revoke it. Funding a trust can avoid probate, but it does not reduce a surviving spouse’s 30 percent elective-share claim.

What is the deadline to file for the elective share in Florida?

The election must be filed by the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s date of death (Section 732.2135). Missing this deadline generally forfeits the right, so act before the window closes.

Can a spouse waive the Florida elective share?

Yes. A valid prenuptial or postnuptial agreement can waive or modify the elective share if it meets Florida’s requirements for fair disclosure, voluntariness, and proper execution. This is the most reliable tool in second marriages and blended families.

How is the Florida homestead treated in the elective share?

The protected homestead is included in the elective estate, but the amount depends on the interest the spouse receives: roughly 50 percent of net value for a life estate or one-half tenants-in-common interest, and 100 percent of net value for a fee simple interest.