Does Florida’s Elective Share Statute Need Revised?

Do you know what Florida’s Elective Share Statute is? Should your  spouse have an inherent right to a portion of your estate regardless of what your will says? Your answer will probably decide whether or not you feel that the statute needs revised.

Elective Share Statutes

• When it comes to marital property there are two types of states, do you know what they are?
• Community property and non-community property (often called common law) states are spread throughout the United States.
• Do you know what Florida is?
• The elective share statute should give you a hint as this was enacted to protect spouses in common law jurisdictions from disinheritance.
• Essentially no matter what you leave your spouse under your estate plan; they can electto take a share that Florida has determined they are entitled to – namely about a third of the estate.
• Do you see why this is so important?
• Otherwise a husband who makes all the money could leave the wife broke if he dies first.
• How is the percentage calculated?

Avoiding Elective Share

• In many states, Florida included, the Palm Beach estate is considered the probate estate in other words irrevocable trusts would not be included.
• So what if Harry leaves all his assets to a trust, what does his wife Wilma get when he dies?
• 30% of nothing is nothing, so she may be out of luck.
• Do you see how the current law makes the elective share lose all of its teeth?

Call for Reform

• The Florida Bar is made up of all licensed attorneys who are licensed to practice law in the State.
• The Bar has proposed elective share legislation since the nineties.
• The proposal would bring most of the non-probate assets into the calculus so that a spouse cannot effectively disinherit their spouse.
• Do you agree – should a Delray Beach spouse be able to be completely disinherited?
• If your answer is that the elective share sounds like a very large penalty for the breadwinner spouse (and possibly his or her kids) it may be important to note that a party can waive their right to the election in a pre or post nuptial agreement.
• So if no one waives it shouldn’t the courts be able to protect it?

What do you think?

Want to learn more about potential elective share reform in Florida? Check out an article published by the Florida Bar outlining their proposed reforms and also a very interesting history of the statute. Just click here.