J. Kelly Kennedy, Attorney/CPA, PLLC

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What is an elective share in Florida?

A prevalent trope in popular media and literature, the notion of a spouse being written out of a will - and often blindsided at the reading - is archaic, and in Florida, next to impossible. This is because there is a strong public policy interest in ensuring that a surviving spouse is able to support him or herself and continues to enjoy, at least to some extent, the life to which they had become accustomed. State laws, including recent changes, have long recognized this.

In Florida, when one spouse dies, the surviving spouse has a right to claim what is known as an elective share. This means that the survivor can choose to take 30 percent (under current law) of the elective estate instead of the inheritance that they otherwise would have received under the will. A 2015 appellate case caused considerable confusion when it affirmed a trial court's holding that the 30 percent served to cap what a spouse could receive.

This meant that a spouse who chose the elective would not be entitled to more than 30 percent of the estate, even if the will devised a larger share. Fortunately, the legislature - as well as many of the state's most prominent probate attorneys - saw this decision as a misinterpretation of legislative intent and acted quickly to clarify the law. The result was a series of bills that amended the elective share statutes in 2016 and 2017.

The current elective share law sets the elective share as a floor. If a surviving spouse chooses the elective share, they are entitled to at least 30 percent of the elective estate. Florida probate attorneys often craft estate plans with the elective share in mind to ensure that surviving spouses receive, at a minimum, the share of the estate to which they are legally entitled.

Source: Florida Statutes, Chapter 732, Part II, "Elective share of surviving spouse; Rights in community property," accessed Mar. 27, 2018

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