The Elective Share

Dean Hanewinckel

In Florida, a person cannot cut his or her spouse out of an inheritance.  Florida law has provisions that gave a surviving spouse a portion of the deceased spouse’s estate so that the survivor is not disinherited and left destitute.  This is called the “Elective Share Law.”

When the Elective Share Law was enacted in 1975, it provided that a surviving spouse was entitled to a minimum of a 30% share of the deceased spouse’s probate estate.  Under the law, the surviving spouse had the option of accepting what was provided under the decedent’s will, or electing to take a 30% share of the decedent’s net probate assets.  The Elective Share did not apply to assets passing outside of probate.  Since a large number of people set up trusts, transfer on death arrangements, and other vehicles to avoid probate, some estates had no probate assets. As a result, many surviving spouses were either inadvertently or intentionally disinherited.

In response to this problem, the Florida legislature passed a new bill which was signed into law on June 11, 1999, by Governor Jeb Bush, that completely revamped the Elective Share law.  The new law closes the loophole by including in the Elective Share assets that do not pass through probate as well as the decedent’s probate estate.  The new, larger estate subject to the elective share is referred to as the “augmented estate” or “Elective Estate.”  Property included in the Elective Estate includes the value of:

• the decedent’s probate estate

• bank accounts and investment accounts titled jointly with a right of survivorship, as well as transfer on death accounts and other similar arrangements.

• The decedent’s interest in property held as joint tenants or tenants by the entireties.

• Assets held in revocable trusts established by the decedent

• Transfers of property by the decedent in which the decedent retained a right to income or principal.

• Cash surrender value of life insurance policies on the decedent’s life (not the value of the death benefits).

• Pensions and Individual Retirement Accounts.

• Gifts and certain transfers of property out of the decedent’s estate within one year prior to death.

• Transfers of property made to satisfy the Elective Share.

The surviving spouse is entitled to elect to take an “elective share” which is 30% of the value of the Elective Estate.  Once this amount is calculated, the statute sets forth the procedure to satisfy the Elective Share or the law will direct how it is paid.  Either way the surviving spouse will receive the 30% share.

In second marriages or other situations where an Elective Share election is not desirable, it is possible for the spouses to waive their right to make an Elective Share election by a pre or post-marital agreement.