Understanding Where You Stand: Florida’s Elective Share Statute

Roslyn and Martin’s marriage was troubled. They never divorced or even separated, but Martin’s anger got the best of him at one point. He decided to remove Roslyn as a beneficiary on all his retirement accounts, checking accounts, and savings accounts. He quietly retitled some business property to prevent her from receiving any benefit from it after his death. After his death, Roslyn was shocked to learn that her inheritance from Martin would be quite small, although she was the primary beneficiary under his Will. She and her attorney conferred to see if Florida’s elective share statute could remedy the situation.

What Is an 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.

So, what is considered to be part of the decedent’s elective estate?  Some examples include:

• 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 income, to use the property, or someone other than surviving spouse had power to distributed property 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.

Some property is not made part of the elective estate, including the following:

• Irrevocable transfers made prior to the effective date of the new statute or after that date but before marriage to the surviving spouse.
• Transfers made with the surviving spouse’s informed written consent.
• The proceeds of any policy of insurance on the decedent’s life in excess of the net cash surrender value of the policy.
• Decedent’s half of community property.

Elect or Not Elect?

A surviving spouse 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.

The election may be withdrawn if it appears the surviving spouse’s testamentary share of decedent’s estate would be greater than the elective share of the estate.

Roslyn’s Choice

Roslyn chose to file an election with the probate court. After valuation of the decedent’s estate, her elective share was greater than the amount she would have received through probate. If the elective share had been smaller, she may have been able to revoke her elective share.

John Mangan is an experienced Florida estate planning attorney who has been board certified in Wills, Trusts & Estates by the Florida Bar. At the Law Offices of John Mangan, P.A., we have assisted many clients in developing comprehensive estate plans that meet their needs. Call us at 772-324-9050 to set up an appointment or use our convenient Contact Form.