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Elective Share

Elective Share

Florida’s elective share statutes are found at Fla. Stat. §732.201 through §732.2155. A surviving spouse has the right to a share of the elective estate of a decedent – designated the “elective share” – which is 30% of the elective estate. Fla. Stat. §732.2065.

What does a widow inherit, if you get the Florida elective share? Or… What’s “in” the elective estate? In other words, what are the things one looks at to calculate that 30%? To name a few: the probate estate (net of liens or claims against the estate, the decedent’s interest in joint bank accounts, a fractional share of real property (not tenancy by the entireties, and not any debts), revocable trusts, certain irrevocable transfers, the cash value of life insurance, and retirement accounts (without taxes). It is therefore important for a personal representative to have gathered an accurate assessment of the decedent’s estate, not just for purposes of the estate’s inventory, but even broader than that, for purposes of an elective share calculation.

Of note, the homestead is excluded from the elective estate – homestead is actually in addition to the elective estate. But it’s the job of the personal representative to try to calculate how much the widow inherits with the elective share. But…. what if the personal representative of the estate inherits MORE if the widow gets LESS? Should a step son, for example, or step daughter, be running the Florida probate if their stepfather or stepmother is filing a claim for an elective share? Elective share disputes is a common cause of litigation for Florida estate attorneys. I guess you have to ask yourself: where was the estate planning attorney ?

A recent opinion from Florida’s Fourth District Court of Appeal explained that the elective share statutes “clearly and unambiguously” sets out just four types of expenses or costs that may be deducted from the value of the assets in the elective share – attorney’s fees is not one of them. Blackburn v. Boulis, 2016 WL 231405 (Fla. 4th DCA Jan. 20, 2016).

Importantly, if a surviving spouse is going to seek an elective share, a limited time frame for making an election to take the elective share is set forth by Fla. Stat. §732.2135. The election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or the date that is two years after the decedent’s death. Of note, a surviving spouse is entitled to request information, and indeed take discovery, in connection with the assets that make up the elective estate, before making the election for (or before the probate court establishes any entitlement to) the elective share. See In re Estate of Sauey, 869 So. 2d 664 (Fla. 4th DCA 2004).

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