Florida’s elective share is the surviving spouse’s statutory right to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust actually leaves them. It is created by Florida Statutes §§ 732.201–732.2155 and cannot be quietly written out of an estate plan. For physicians, business owners, and other high-net-worth professionals, the elective share is one of the few rules in Florida law that can override your own signed documents — which is exactly why it deserves planning, not surprise.
I’ve sat across the table from plenty of clients who assumed a will was the last word. It isn’t, not when there’s a surviving spouse. Below is how the elective share actually works in Florida, what gets pulled into the calculation, and the legitimate tools to either honor it or plan around it before it becomes a probate fight.
What the Florida Elective Share Is — and Why It Exists
The elective share exists to stop one spouse from disinheriting the other. Florida, like most states, treats marriage as an economic partnership. Even if a spouse leaves everything to children from a prior marriage, a charity, or a trust for the dog, the survivor can step in and demand a baseline percentage of the marital wealth.
The headline number is straightforward: 30% of the elective estate (Fla. Stat. § 732.2065). The complexity lives in two places — what counts as the “elective estate,” and how the share gets funded once it’s calculated. Both matter enormously for someone with a layered estate (revocable trusts, retirement accounts, jointly titled real property, life insurance).
This is a separate right from homestead protections and the family allowance, and it stacks alongside them rather than replacing them. A surviving spouse in Florida can be a formidable claimant.
What Counts in the “Elective Estate”
Here’s where many people guess wrong. The elective estate is not just the assets that pass through probate under the will. Florida deliberately built a broad, anti-evasion definition in Fla. Stat. § 732.2035 so that you can’t shrink a spouse’s share simply by retitling assets or stuffing them into a trust.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in property that passed by right of survivorship (joint bank accounts, jointly titled real estate).
- Pay-on-death and transfer-on-death accounts.
- The decedent’s revocable trust assets — yes, a living trust does not defeat the elective share.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Amounts in qualified retirement plans and IRAs.
- Property transferred within one year of death (with limited exceptions) and certain transfers where the decedent kept the right to income or control.
The takeaway: most of the “non-probate” planning that avoids probate does not avoid the elective share. A revocable trust is excellent for privacy and incapacity planning — see our note on how trusts and wills fit together at our wills overview — but it is not an elective-share shield.
What’s Generally Excluded
Certain things drop out of the calculation. Property the surviving spouse already receives, irrevocable transfers made more than a year before death and not caught by the retained-interest rules, and (in many cases) the proceeds of irrevocable life insurance trusts established well in advance can fall outside the elective estate. The line between “included” and “excluded” is genuinely technical, and it’s where good planning earns its keep.
How the Share Is Calculated and Funded
The process runs in two steps. First, you total the elective estate and multiply by 30% to get the elective-share amount. Second, you figure out what the surviving spouse is already getting from the decedent — because Florida credits those amounts against the share under Fla. Stat. § 732.2075.
Think of it as a floor, not a bonus. If a spouse is already inheriting more than 30% through the will, trust, joint accounts, and beneficiary designations, electing buys them nothing. The election only matters when the survivor would otherwise receive less than the statutory minimum.
- Calculate the elective estate under § 732.2035.
- Multiply by 30% to fix the elective-share amount.
- Credit what the spouse already receives (outright gifts, certain trust interests, survivorship property) under § 732.2075.
- Satisfy any shortfall by apportioning the remaining liability across the other recipients of the elective estate.
One important wrinkle for blended families: an interest the spouse receives in a qualifying “elective share trust” can count toward satisfying the share. That lets a planner give the survivor income for life while preserving principal for children from a prior marriage — a structure I use constantly with second marriages.
Deadlines: The Election Is Not Open-Ended
The right to elect has hard deadlines, and they’re unforgiving. Under Fla. Stat. § 732.2135, the surviving spouse must file the election with the court by the earlier of:
- Six months after service of the notice of administration, or
- Two years after the decedent’s date of death.
There is a mechanism to request an extension for good cause if it’s sought before the deadline runs, but no one should count on it. A surviving spouse who sits on the right can lose it entirely. If you’re the survivor, talk to counsel the moment administration opens — not after you’ve grieved for a year.
Planning Around the Elective Share — Legitimately
“Planning around” the elective share does not mean hiding assets the week before death. Florida’s one-year lookback and retained-interest rules are built precisely to catch that. The defensible strategies are the ones executed early, with consideration, and with both spouses’ eyes open.
1. A Marital Agreement (Prenup or Postnup)
This is the cleanest tool. Under Fla. Stat. § 732.702, a spouse can waive the elective share — entirely or in part — through a written agreement signed before or during the marriage. The waiver should be specific, supported by fair financial disclosure, and signed without coercion. A vague “I waive all rights” clause buried in a prenup can be challenged; a well-drafted, well-disclosed waiver usually holds. For physicians and business owners entering a second marriage, this is often the single most valuable document in the plan.
2. Irrevocable Transfers Made Well in Advance
Because the elective estate reaches back one year and captures retained interests, transfers that are genuinely irrevocable, completed, and old enough can fall outside the calculation. Irrevocable life insurance trusts and certain completed gifts, structured properly and timed years ahead, are legitimate. The keyword is completed — keep a string attached and the asset gets pulled back in.
3. The Elective Share Trust for Blended Families
If the goal is to provide for a current spouse while protecting children from an earlier marriage, an elective-share-qualifying trust lets you do both. The survivor gets a lifetime income interest that counts toward the 30%, and the remainder is preserved. This honors the statute rather than fighting it — usually the smarter posture.
4. Coordinate Multi-State Holdings
Many of our South Florida clients are snowbirds with property and entities in New York. The elective share is a creature of the decedent’s domicile, but how assets are titled across states shapes the elective estate. If you hold New York real estate or have planning anchored up north, coordinate it carefully — Morgan Legal’s discussion of is a useful primer on how retained-interest transfers are treated, and their overview of the explains how the documents interlock across jurisdictions. Florida and New York both police retained interests, so a transfer that “works” in one needs to be tested against the other.
Special Concerns for Physicians and High-Net-Worth Professionals
If your wealth sits in a professional practice, a PLLC, retirement plans, and life insurance, the elective share interacts with your asset-protection planning in ways that catch people off guard. Retirement accounts and the cash value of life insurance are squarely inside the elective estate — so the very vehicles you use to shelter assets from creditors do nothing to shelter them from a spouse’s election.
Physicians in second marriages, in particular, should not assume that a revocable trust naming their children quietly bypasses a current spouse. It doesn’t. The honest move is to decide deliberately: either provide for the spouse at or above the statutory floor, or document a clean waiver. Drift, and you hand your children a probate dispute.
Florida-specific planning for these situations is something we handle directly; Morgan Legal’s works through exactly these elective-share and blended-family scenarios.
If You’re the Surviving Spouse: Act Early
The flip side matters too. If your spouse died and the documents leave you less than you expected, you may have a powerful statutory claim — but only if you act inside the § 732.2135 window. Gather the title information on every account, the trust documents, the life insurance, and the retirement statements, because all of it likely counts toward your 30%. Then move quickly. The elective share is generous; the deadline is not.
Whether you’re building a plan or facing one, the elective share rewards people who understand it in advance. Talk to a Florida estate attorney before you sign — or before the clock runs out.
Frequently Asked Questions
How much is the elective share in Florida?
The elective share is 30% of the decedent’s elective estate under Fla. Stat. § 732.2065. The elective estate is broadly defined to include probate assets, revocable trust assets, joint and survivorship property, pay-on-death accounts, the cash surrender value of life insurance, and retirement accounts.
Can a revocable living trust avoid the Florida elective share?
No. Florida deliberately includes revocable trust assets in the elective estate under Fla. Stat. § 732.2035. A living trust is excellent for avoiding probate and planning for incapacity, but it does not shield assets from a surviving spouse’s elective-share claim.
What is the deadline to claim the elective share in Florida?
Under Fla. Stat. § 732.2135, the surviving spouse must file the election by the earlier of six months after service of the notice of administration or two years after the decedent’s date of death. A good-cause extension may be requested before the deadline, but it is not guaranteed.
Can a spouse waive the elective share?
Yes. Under Fla. Stat. § 732.702, a spouse can waive the elective share in whole or in part through a written prenuptial or postnuptial agreement. The waiver should include fair financial disclosure and be signed voluntarily to withstand a later challenge.
Does the elective share apply if the surviving spouse already inherits a large share?
It functions as a floor, not a bonus. Florida credits what the spouse already receives against the 30% under Fla. Stat. § 732.2075. If the survivor is already inheriting at least 30% of the elective estate through the will, trust, or beneficiary designations, electing provides no additional benefit.
