Spousal Rights and the Elective Share in Palm Beach, FL

A Palm Beach man in a second marriage decided to leave nearly everything to his children from his first marriage, naming his current wife in only a small bequest. He assumed his will settled the matter. It did not. Florida law gives a surviving spouse rights that a will alone cannot override, and his widow had the power to claim far more than he intended. Understanding these protections before you plan, or before you sign anything, can prevent a painful surprise.

You Cannot Fully Disinherit a Spouse in Florida

Florida is not a community property state, but it strongly protects surviving spouses. The centerpiece is the elective share, found in Section 732.2065 and the sections that follow. A surviving spouse may elect to receive 30 percent of the “elective estate,” a broad pool that includes far more than what passes under the will. It can reach certain trust assets, jointly held property, payable-on-death accounts, and other transfers, not just probate property. This makes it very hard to sidestep by simply moving assets out of a will.

How the Elective Share Works

If a surviving spouse is left less than 30 percent of the elective estate, they can file an election within strict deadlines set by Florida law and the probate court in Palm Beach County. The court then calculates the elective estate and the spouse’s share, drawing contributions from various sources. Because the calculation is technical and the deadlines unforgiving, both planners and surviving spouses benefit from acting early and precisely.

Homestead Adds Another Layer

Florida’s homestead protection (Article X, Section 4) is separate from and stacked on top of the elective share. If a couple’s Palm Beach residence is homestead property, a spouse cannot freely devise it away from a surviving spouse. The surviving spouse is generally entitled to either a life estate in the home or, by election, a one-half interest as tenant in common with the descendants. This frequently overrides what the deceased spouse wrote in a will.

The Second-Marriage Trap

• You want children from a prior marriage to inherit the bulk of your estate.
• Your current spouse is entitled to the elective share and homestead rights regardless.
• If you ignore these rights, your plan can be partly unwound after death.
• The honest fix is to plan around the rights, not pretend they do not exist.

Waivers and Marital Agreements

Spouses can waive elective share and homestead rights, but only through a valid agreement. A prenuptial or postnuptial agreement that meets Florida’s requirements, including proper execution and, in many cases, fair financial disclosure, can adjust or release these rights. Without a valid waiver, the statutory protections control. Florida has no state estate or inheritance tax, so this planning is about fairness between spouse and heirs, not tax.

Plan With Both Sides in Mind

Whether you are protecting a second spouse, children from an earlier marriage, or both, the path forward is the same: design a plan that accounts for the elective share and homestead from the start. Tools like marital trusts, life insurance, and clear agreements can balance competing interests without triggering a contested election later.

This article is general information, not legal advice. Florida’s elective share and homestead rules are complex and deadline-driven. Consult a licensed Florida estate planning attorney before relying on a will to direct assets between a spouse and other heirs.