Many people assume that a will or trust gives them complete freedom to decide who inherits their assets—including the ability to leave nothing to their spouse. In Florida, that’s simply not the case.
Florida law strongly protects surviving spouses from being completely disinherited. Even if your will explicitly tries to exclude your spouse or leave them only a nominal amount, they can still claim a significant portion of your estate through the elective share—unless they have voluntarily waived that right in a valid prenuptial agreement, postnuptial agreement, or other enforceable marital contract.
This protection doesn’t extend to other family members: you can generally disinherit siblings, nieces/nephews, grandchildren, and (in most cases) adult children through proper estate planning. But spouses are treated differently.
Florida’s Elective Share: The Basic
Under Florida Statute § 732.201 et seq., a surviving spouse has the right to elect to receive 30% of the deceased spouse’s elective estate—regardless of what the will, trust, or other documents say.
The “elective estate” is broader than just probate assets. It includes an “augmented” calculation that pulls in many non-probate items, such as:
-Assets in a revocable living trust
-Payable-on-death (POD) or transfer-on-death (TOD) accounts
-Joint accounts (the deceased spouse’s share)
-Life insurance proceeds (net cash surrender value or death benefits in certain cases)
-Retirement accounts and annuities
-Certain gifts made within a year of death
-Other non-probate transfers
Debts of f the deceased are subtracted to arrive at the net elective estate before applying the 30%.
This means even if you’ve carefully titled assets to avoid probate or funded a trust to bypass your will, your surviving spouse may still be entitled to claim 30% of a much larger pool of assets.
Key Factors That Can Affect the Elective Share
Florida’s rules consider various circumstances, including what the surviving spouse already received outside probate (e.g., joint ownership, beneficiary designations)
Strict Deadlines for Claiming the Elective Share
If a surviving spouse wants to pursue their elective share rights, they must act quickly:
-File an election within the earlier of:
-6 months after service of the Notice of Administration (when probate begins), or
-2 years after the date of death
Missing these deadlines generally waives the right forever. Extensions may be possible in limited circumstances, but don’t count on them.
How to Avoid or Limit Spousal Claims
The only reliable way to limit or eliminate a spouse’s elective share rights is through a valid waiver.
-Prenuptial agreement (before marriage)
-Postnuptial agreement (after marriage)
-Other written marital contract
These agreements must meet strict requirements: full financial disclosure, signed in the presence of two witnesses, and executed voluntarily without duress. Florida courts scrutinize them closely, especially if one spouse later claims unfairness.
Without a waiver, attempts to disinherit a spouse through a will or trust alone are usually ineffective against an elective share claim.
Why This Matters for Florida Estate Planning
Florida has no state-level estate tax or inheritance tax, which is great news for most families. But the elective share can still create surprises, disputes, and unintended distributions—especially in:
-Second marriages or blended families
-Situations with significant separate property
-Cases where one spouse owns most assets individually
If you’re planning your estate, don’t assume “my will says it, so it’s done.” Proactive planning with waivers, trusts, and beneficiary coordination can align outcomes with your true wishes while respecting spousal protections.
If you’re a surviving spouse who believes your rights may have been overlooked, consult an experienced Florida probate and estate administration attorney immediately—time is critical.
At our Jupiter-based firm, we help Florida couples create clear, enforceable plans that protect spouses, honor intentions, and minimize conflict. Whether you’re updating documents, considering a prenup/postnup, or navigating a probate matter, we’re here to guide you.
Contact us today for a confidential consultation—we’ll review your situation and ensure your plan works the way you expect in Florida.
Have questions about the elective share or spousal protections in your estate plan? Drop a comment below—we’d love to help!
