Florida Elective Share Fundamentals
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.
What Is 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.
How Does the Elective Estate Affect the Elective Share?
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:
- Ownership interest in properties that pass by right of survivorship;
- Property held in decedent’s revocable trust;
- Property decedent irrevocably transferred if the decedent still had the right to receive or use income or principal or someone other than the surviving spouse had power to distributed principal to the decedent;
- Decedent’s ownership interest in cash value of life insurance policies;
- Death benefits payable under many retirement plans; and
- Certain property that may have been transferred during the year prior to the decedent’s death.
However, some assets will not be made part of the decedent’s elective estate. Examples include:
- Any irrevocable transfers made before marrying the surviving spouse.
- Any transfers that the surviving spouse consented to in writing.
- Life insurance proceeds on the decedent’s life that exceed the net cash surrender value of the policy.
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.
Is the Elective Share Worth Claiming?
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:
- Six months from service of notice of administration
- Two years after the date of death.
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.
Talk to an Attorney About the Florida Elective Share.
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.