Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of a deceased spouse’s “elective estate,” even if the will or trust says otherwise. Created under Chapter 732, Part II of the Florida Statutes, it reaches far beyond the probate estate to include revocable trusts, payable-on-death accounts, and other assets people assume pass privately. For couples who own property in more than one state, it is one of the most commonly underestimated rules in Florida estate planning.
I have sat across the table from more than a few adult children, second spouses, and out-of-state executors who were genuinely surprised by this. Someone moved to Palm Beach, set up a trust that left everything to the kids from a first marriage, and assumed the new spouse was cut out cleanly. Florida law says otherwise. Whether you want to honor that protection or plan around it, you need to understand how the elective share actually works before you sign anything.
What the Florida elective share is (and what it is not)
The elective share is the surviving spouse’s right to take a fixed percentage of the deceased spouse’s estate instead of accepting whatever the estate plan left them. Under Fla. Stat. §732.2065, that percentage is 30% of the elective estate. The surviving spouse chooses, or “elects,” whichever path is more favorable.
A few clarifications matter here, because this is where people get tripped up:
- It is not community property. Florida is not a community-property state. The elective share is a separate statutory remedy, and 30% is the number regardless of how long the marriage lasted.
- It is not automatic. The surviving spouse has to affirmatively file an election. If they do nothing, they may receive only what the documents provide.
- It cannot be erased by simply disinheriting the spouse in a will. A will that says “I leave nothing to my spouse” does not defeat the elective share. The right exists independently of the document.
- It applies to a legal spouse only. A divorced former spouse, a fiancé, or a long-term partner who never married has no elective-share right.
This is a deliberate policy choice by the Florida Legislature: a marriage should carry an economic floor for the survivor that one spouse cannot quietly remove. The elective share is that floor.
What counts in the “elective estate”
Here is the part that surprises out-of-state clients the most. The 30% is not calculated on the probate estate alone. Under Fla. Stat. §732.2035, the elective estate is a broad, aggregated pool that pulls in many non-probate assets. The Legislature wrote it this way precisely to stop people from sidestepping the spouse by using will substitutes.
The elective estate generally includes:
- The decedent’s probate estate.
- The decedent’s interest in a revocable (living) trust, the favorite tool people use thinking it bypasses the spouse.
- Payable-on-death and transfer-on-death accounts (POD/TOD bank and brokerage accounts).
- Certain jointly held property with rights of survivorship, to the extent of the decedent’s contribution.
- The net cash surrender value of life insurance on the decedent’s life, owned by the decedent.
- Retirement plan and pension benefits, within the limits the statute sets.
- Certain property transferred within one year of death and some transfers in which the decedent retained an interest or the power to revoke.
In other words, the classic “I’ll just title everything as POD to my children” strategy does not avoid the elective share. Those accounts get counted right back into the pool. The same goes for a fully funded revocable trust. This is one reason I push back hard when a new client tells me they already “took care of it” with beneficiary designations alone.
How the share gets satisfied
Once the elective amount is calculated, Florida does not necessarily force a liquidation. The statute sets an order for which assets are tapped to satisfy the share, and the surviving spouse’s own interests count toward it first. A spouse who already receives substantial property under the plan may have little or nothing left to claim, because that property is credited against the 30%. The election is a “top-up to 30%,” not 30% on top of everything.
The deadline to elect is unforgiving
If you are the surviving spouse, the clock matters enormously. Under Fla. Stat. §732.2135, the election must be filed by the earlier of:
- Six months after service of the notice of administration, or
- Two years after the decedent’s date of death.
Extensions are possible in narrow circumstances, but you cannot count on them. I have watched a grieving spouse lose a six-figure claim because the family kept telling them “we’ll sort the money out later,” and the six-month window quietly closed. If you are a surviving spouse in Palm Beach or anywhere in Florida, do not wait. The decision to elect or waive should be made with counsel well inside that window. For an overview of how administration timelines run, our Florida probate guide walks through the steps.
How to plan around the elective share legitimately
Plenty of clients have a perfectly valid reason to limit a spouse’s claim: a late-in-life remarriage, a blended family, a business meant to stay with one set of children, or assets a spouse already agreed are off the table. Florida gives you lawful tools. Trying to hide assets is not one of them, and it usually backfires in litigation.
1. Waiver by marital agreement
The cleanest, most durable approach is a written waiver. Under Fla. Stat. §732.702, a spouse can waive the elective share (and homestead, intestate share, and more) in a valid prenuptial or postnuptial agreement. A prenup signed before the wedding does not even require financial disclosure to waive these rights; a postnup signed during the marriage does require fair disclosure. Get the formalities right and the waiver holds. Get them wrong and the whole thing can be set aside.
2. Provide for the spouse so the election is unattractive
You do not always have to eliminate the right; sometimes you neutralize it. If the plan already gives the spouse property worth at least 30% of the elective estate, electing gains them nothing. A well-drafted elective-share trust can satisfy the obligation while still controlling how and when the spouse receives the benefit, which is useful in second marriages where you want to provide for the spouse during life but preserve principal for children.
3. Coordinate, do not improvise
Because the elective estate sweeps in trusts and beneficiary accounts, piecemeal moves rarely work. The reliable path is a single, coordinated plan. For couples with a New York footprint, the way you structure home transfers and retained interests matters on both sides of the line, and our colleagues’ discussion of shows how retained-interest planning interacts with spousal rights. The same family may also need a properly executed to govern New York-situs assets, while Florida documents govern Florida property.
Out-of-state owners and dual-state residents: read this twice
This is the editorial heart of the matter for anyone splitting time between Florida and another state. Several traps recur:
- Domicile drives everything. The elective share applies when the decedent is domiciled in Florida at death. If you snowbird between, say, New York and Palm Beach, where you are legally domiciled, not merely where you own a condo, can decide whether Florida’s 30% rule or another state’s spousal rules apply. Domicile is a fact-intensive question, and a sloppy answer invites litigation.
- Out-of-state real estate has its own rules. Real property is generally governed by the law of the state where it sits. A Florida-domiciled spouse may still face a different spousal-rights regime, and possibly ancillary probate, for a house up north. That is exactly why a Florida plan and a New York plan have to be drafted to work together, not in isolation.
- Your old prenup may not say what you think. An agreement drafted in another state years ago may not clearly waive Florida elective-share and homestead rights. Moving to Florida is a good moment to have it reviewed.
For Florida-specific drafting, including elective-share-aware trusts and waivers, the team at our practice handles these dual-state situations regularly.
Don’t forget homestead, which is a separate animal
People conflate the elective share with Florida’s homestead protections, but they are different rights that can both apply. Under Article X, §4 of the Florida Constitution and Fla. Stat. §732.401, a homestead cannot be freely devised away from a surviving spouse and minor children. If there is a surviving spouse, the default is a life estate to the spouse with a remainder to the descendants, or the spouse may elect a one-half tenancy in common instead. A “leave the house to my kids” clause can be void as applied to homestead. So even a spouse who waived the elective share may still have homestead rights unless those were waived too. This is one more reason to have the full will and estate documents reviewed as a set.
Common mistakes I see in Palm Beach plans
- Assuming a revocable trust hides assets from the spouse. It does not. The trust is squarely in the elective estate.
- Relying on POD/TOD beneficiary forms to disinherit. Those accounts are pulled back into the calculation.
- Using a generic out-of-state prenup without confirming it waives Florida rights.
- Ignoring homestead because the elective share was “handled.” Two separate rights, two separate waivers.
- Surviving spouse missing the election deadline because no one explained the six-month/two-year rule.
When to bring in a Florida attorney
If you are entering a second marriage, own property in more than one state, want to provide for a spouse while protecting children, or you are a surviving spouse weighing whether to elect, this is not a do-it-yourself area. The interaction between the elective estate’s broad reach, marital-agreement formalities, homestead, and multi-state domicile is where good intentions go wrong. A short planning conversation now is far cheaper than the contested probate later. You can reach our team through the contact page to talk through your specific situation.
Frequently Asked Questions
How much is the elective share in Florida?
The elective share is 30% of the decedent’s elective estate under Fla. Stat. §732.2065. The percentage is fixed regardless of the length of the marriage, and the elective estate is calculated broadly to include many non-probate assets.
Does a revocable living trust avoid the Florida elective share?
No. Fla. Stat. §732.2035 expressly includes the decedent’s interest in a revocable trust in the elective estate. Payable-on-death accounts, certain joint property, and other will substitutes are also counted, so trusts and beneficiary designations do not bypass a surviving spouse’s claim.
What is the deadline to file for the elective share?
Under Fla. Stat. §732.2135, the surviving spouse must file the election by the earlier of six months after service of the notice of administration or two years after the date of death. Missing this window generally forfeits the right, so act promptly and with counsel.
Can a spouse waive the Florida elective share?
Yes. Under Fla. Stat. §732.702, a spouse can waive the elective share (and homestead and other rights) in a valid prenuptial or postnuptial agreement. A prenup does not require financial disclosure to waive these rights; a postnup does require fair disclosure to be enforceable.
How does the elective share work if I live in two states?
Florida’s elective share applies when the decedent is domiciled in Florida at death, so where you are legally domiciled, not just where you own property, is decisive. Out-of-state real estate is usually governed by the law where it sits, so dual-state owners should coordinate their Florida and other-state plans together.
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For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles .
