Do you know what an elective share is? In West Palm Beach as a widow or widower you have a statutory right to thirty percent of the elective estate of your loved one after they pass, regardless of what was left in the will for you. But how do you calculate the elective estate? Is it the same as the probate estate? Far from it, learn the differences.
Probate Estate
- The West Palm Beach probate estate of an individual is all the property subject to probate.
- The easier way to summarize probate property is by defining the antithesis of probate property, non-probate property.
- This is property that passes outside of the probate process in West Palm Beach.
- Any property that passes pursuant to a contract would be included, this means certain benefit accounts including life insurance proceeds.
- Any property that passes by right of survivorship passes outside of the probate process so for example if you and your wife own a home as tenants by the entirety upon your death the house is hers, no probate needed.
- Also Pay on Death accounts are not subject to probate administration.
- Finally trust property falls outside the guise of probate property.
- Everything else gets swept into this catch all of probate property.
- The problem is that it is easy to control away the probate property through formation of trusts, this allows someone to effectively disinherit a spouse if they could limit the probate estate and force the spouse to elect a share from that.
- This is the law in some States but not in Florida.
Calculating the Elective Estate
- In West Palm Beach the elective estate is much larger than the probate estate.
- For one thing any revocable trust and some irrevocable trusts are going to count as part of the estate for the elective share.
- Also life insurance proceeds will be counted as well as Pay on Death accounts.
- In other words the elective estate contains trace amounts of probate and non-probate property.
- Why does this matter?
- Because in Florida a spouse has a right to disinherit another spouse by will and leave them destitute absent an election.
- This prevents just that from happening.
- Can you still get rid of elective share rights in West Palm Beach?
- Absolutely but you will have to get your spouse to waive their claim to the share in a written agreement after you disclose your financials to them.
- Keep in mind to avoid full disclosure you could have the agreement entered into before marriage.
Do you know your rights under Florida’s elective share statute?