Florida Elective Share Law can be a Probate Pitfall

Probate estate vs. elective estate, community property vs. separate property. John Mangan, Attorney at Law practicing estate planning and probate law will tell you which laws will affect your estate plans and the probate process.

Certain events in our lives often trigger an estate plan review. For example, if you get married or divorced, it is very likely you will want to change your Will and other estate planning documents. But what happens if you just find yourself estranged from your spouse? Can you change your estate plan to disinherit your husband or wife? You certainly can try, but don’t forget the Florida elective share. This law may have a profound effect on your estate planning and the probate of both your estate and your spouse’s estate.

Pertinent Details about the Florida Elective Share

Under state law, the surviving spouse of a deceased individual may exercise certain rights over the decedent’s estate. In fact, Florida law states that the surviving spouse of someone who lived in Florida at the time of death may be entitled to 30% of their deceased spouse’s elective estate. This can happen despite what is stated in the deceased spouse’s estate planning documents.

During probate, a personal representative administers a deceased person’s probate estate, which is that person’s property that needs to pass through probate. Some assets do not become part of the probate estate. However, those assets may become part of the elective estate.

Remember the Florida Elective Share When Estate Planning

When developing your estate plan, many couples leave most of their assets to each other. At times, one spouse may want to prevent the other spouse from receiving anything. The Florida elective share may prevent this particular estate planning goal from coming to fruition:

  • Will – A Will is used to establish an orderly way to dispose of a person’s estate after their death. State law trumps the Will when it comes to the elective share.
  • Revocable trust – Living trusts generally do not pass through probate. However, property held in a deceased spouse’s revocable living trust typically becomes part of the elective estate.
  • Irrevocable trust – A testator may transfer property to an irrevocable trust to keep it from his or her probate estate. However, that property may become part of the elective estate in some circumstances.
  • Retirement plans and beneficiary designations – Disinheritance by changing beneficiary designations may not work. Here, again, state law may take precedence over those beneficiary designations. A decedent’s cash value of life insurance policies typically becomes part of the elective estate.

And When Involved in a Probate Case

A surviving spouse may elect to take their elective share of an estate, but are not required to do so. When considering the Florida elective share while probating a deceased spouse’s estate, remember:

  • That the elective share contains property that may not be included in the probate estate
  • To consider retirement accounts, jointly-owned property, trusts, and insurance policies for inclusion in the elective estate.
  • That certain property transferred by the deceased spouse in the year preceding his or her death may be part of the elective estate.
  • That transfers made with your informed written consent typically are not part of the elective estate.
  • The decedent’s half of community property may not become part of the elective estate.
  • That not all insurance policy payouts will become part of the elective estate.

Whether to Elect or Not to Elect Your Florida Elective Share Can Be a Complex Decision

John Mangan is an experienced Florida estate planning attorney who has been board certified in Wills, Trusts & Estates by the Florida Bar. At Law Offices of John Mangan, P.A., we help clients develop an estate plan that’s appropriate for their circumstances. Call us at 772-324-9050 to set up an appointment or use our Contact form. With our office located in Palm City, we also assist clients in surrounding communities like Stuart, Hobe Sound, Jupiter, and Port St. Lucie.

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