Understanding Elective Share

When someone dies, they leave behind heirs and sometimes a surviving spouse. Sometimes surviving spouses may be dismayed to learn they have been disinherited by the decedent, left a smaller share than expected, or simply not mentioned. When this happens, the surviving spouse may be able to claim an elective share of their spouse’s estate.

What is an elective share?

The surviving spouse of a deceased person may claim a certain percentage of the elective estate of a deceased spouse, whether named in a Will or not. Florida law allows the surviving spouse to claim up to 30% of the elective estate.  The elective estate can be much broader than the probate estate and may include assets passing by beneficiary designation or right of survivorship outside of probate.

Example:  Nancy and Eli’s marriage lasted for twenty years, but they had not lived together for the two years prior to his death. During this two year estrangement, Eli wrote a Will leaving his estate to someone other than Nancy. When Eli passed away, though, Nancy may elect to claim 30% of the elective estate.

What is the connection between the probate estate and elective estate?

The property an individual owns at the time of death may become part of his or her probate estate. However, not all assets pass to heirs through probate. Some property may pass through joint ownership or beneficiary designations.

The elective estate does include property that is not typically part of a probate estate:

• Property held in decedent’s revocable trust;
• Decedent’s ownership interest in cash value of life insurance policies;
• Ownership interest in properties that pass by right of survivorship;
• Property decedent irrevocably transferred if the decedent still had the right to receive or use income or principal or someone other than surviving spouse had power to distribute principal to the decedent;
• Death benefits payable under many retirement plans; and
• Certain property that may have been transferred during the year prior to the decedent’s death.

Example: When Eli passed away, his Will left his estate to someone other than his wife, Nancy. However, much of his estate passed to heirs through joint ownership, trusts, and beneficiary designations as a method of keeping Nancy from inheriting. However, his elective estate typically will include property he transferred a year before his death and assets that passed by right of survivorship and/or beneficiary designation.

How does a surviving spouse claim an elective share?

If a surviving spouse decides to claim an elective share, he or she must file an election with the court within either six months after service of a notice of administration or two years after the decedent’s date of death, whichever is earlier.

Consult with an Experienced Probate Attorney.

At the Law Offices of John Mangan, P.A., we help clients like you with probate and estate planning concerns. Please contact us at 772-324-9050 to schedule an appointment or fill out our Contact Form. From our office in Palm City, Florida, we also serve clients in surrounding communities like Stuart, Hobe Sound, Port St. Lucie, and Jupiter.