J. Kelly Kennedy, Attorney/CPA, PLLC

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Attorney and CPA

What is an elective share?

When a person passes away, they leave all their belongings, assets and debt. Upon death, this property transfers to what is known as the estate. The amount that is left in the estate after debts and taxes have been paid is then distributed to the person's heirs according to the person's estate planning documents -- like a will -- or is distributed according to the laws of intestacy if the person died without a will. The amount that is distributed to the person's heirs is their inheritance.

In these situations, the surviving spouse is treated differently than the rest of the beneficiaries. This is because the surviving spouse may be entitled to an elective share. Some may wonder -- what is an elective share?

Under Florida statues chapter 732 part II, a spouse can take a portion of the community property of the decedent. Specifically, under section 732.201 a surviving spouse has the right to an elective share of the estate of a person who has died and was domiciled in Florida. Under section 732.2065, this elective share is valued at 30 percent of the value of the elective estate.

Under these laws the elective estate includes certain property of the decedent. Section 732.2035 says that the elective estate includes property that is placed in the probate estate, the value of accounts that transfer on death, the rights in certain property owned in joint tenancy and other property where the decedent had a right to the property's income.

The rules surrounding the surviving spouse's elective share can be complicated and depend on a variety of factors. Therefore, this blog post cannot provide specific legal advice about a particular situation. However, an attorney can help to explain a spouse's right to an elective share and how it effects others' right to inheritances.

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