A last will and testament provides the means for a person to ensure that their property and assets are distributed, following their death, according to their wishes. But a will also allows the deceased to specifically exclude certain individuals from receiving any portion of the estate, including spouses. When this happens, Florida gives the spouse rights to circumvent the exclusion.
The elective share
When a spouse is disinherited via a will, Florida Probate Code Section 732.201 creates a right known as the elective share. The right gives a surviving spouse the option to take a portion of the estate, regardless of the terms of the will. The length of the marriage is irrelevant for purposes of the elective share and is only an option – the surviving spouse gets to choose whether to take it.
The amount of the elective share is equal to 30% of the elective estate. It’s important to note that there is a difference between the elective estate and the probate estate. For instance, the deceased may have had an account with survivorship rights – meaning the account would pass automatically to a named beneficiary upon their death. An account like this would not normally pass through probate. However, it would be included in the elective estate for purposes of calculating the surviving spouse’s share.
The surviving spouse has a deadline for choosing the elective share. They must do so within six months of being properly notified that the will has been filed, or within two years of the date of the deceased’s death, whichever comes first. The right to take an elective share can be waived, through either a pre-nuptial or post-nuptial agreement.