Dividing estate assets can be a thorny problem. In addition to a deceased person’s Will – assuming they prepared one – personal representatives and heirs may tackle family allowance eligibility, homestead laws, unusual Wills, and beneficiary designations that have not been updated for years. Add the following to that list of issues: the Florida Elective Share.
The surviving spouse of a person domiciled in Florida at the time of death can take 30% of the decedent’s elective estate even if the Will states otherwise.
For example, Leonard and his wife, Julia, had a major disagreement. Julia immediately contacted her estate planning attorney and prepared a new Will disinheriting Leonard. If Julia passes away without changing her Will and while still married, Leonard may claim part of her estate anyway.
Newlywed couples may have a different problem. Cindy and Jordan married a year ago, but never changed their Wills. When Jordan died unexpectedly, Cindy learned that, according to his Will, she would not receive any of his estate. With the help of her estate planning attorney, however, she learned that Florida law treats her as a pretermitted spouse who is entitled to an intestate share of the estate. Her share will be equal to at least 50%, which is greater than the elective share amount, and may be equal to 100% depending upon the presence or absence of children (and their lineage) for Cindy and Jordan. So, while Cindy could file for elective share, she may be better served filing as a pretermitted spouse.
When an individual dies, they leave behind property that may or may not become part of their probate estate and their elective estate. Assets that were jointly owned or accounts with designated beneficiaries typically do not become part of a probate estate. However, the elective estate is handled a little differently.
Examples of property that may be included in a decedent’s elective estate:
However, some assets will not be made part of the decedent’s elective estate. Examples include:
Surviving spouses may be able to claim part of the decedent’s estate that did not become part of the probate estate. This is done, in part, because an angry spouse could otherwise disinherit a spouse by changing beneficiary designations and property titles without even changing their Will.
That depends on a number of factors. For example, did the decedent completely disinherit the surviving spouse or just leave them a small portion of the estate? Is that portion larger than what the spouse would receive by claiming the elective share? Is the surviving spouse considered a pretermitted spouse?
This is not a simple issue. However, if a surviving spouse decides to take the elective share they must file an election with the probate court within the earlier of two dates:
Sometimes the surviving spouse’s testamentary share will be greater than the elective share. If the surviving spouse prematurely filed for elective share, it may be possible to withdraw the election.
Attorney John Mangan is board certified in Wills, Trusts & Estates by the Florida Bar. Please call us at 772-324-9050 or use our Contact Form to set up an appointment. We help clients throughout Florida, including Stuart, Palm City, Hobe Sound, Jupiter, and Port St. Lucie.