In Florida, disputes over a person’s property after they have died are unfortunately common. The objective of probate is to “prove” the person’s will and make sure their assets are distributed as they desired. However, the state also has contingencies in place to protect their spouse if they are disinherited.
With the elective share laws, the disinherited spouse is accorded certain rights. This essentially circumvents the person’s will and stops them from leaving their spouse with nothing from the estate.
Still, it is important for people who consider elective share to understand what it entails. There are complexities with estate planning, probate and estate administration that will require professional advice to navigate.
Understanding elective share laws and what they do
It might seem counterintuitive to overrule a person’s desires when they write an estate plan. But the idea behind elective share is to grant the spouse left behind a percentage of the estate so they will not be treated unfairly or left with nothing.
In general, the disinherited spouse who uses elective share can receive 30% of the estate. The word “elective” is important to understand because the spouse has the option of using this law. There is a deadline for elective share. It must be done within six months of being informed that the will was filed or two years after the testator’s death.
When this law was created, the goal was to protect women who were reliant on their husbands. If they were written out of the will, the state might have ended up being responsible for them. The objective was to avoid this. Now, either spouse can opt for elective share.
A person might disinherit a spouse for myriad reasons. Perhaps they have separated but not divorced and are no longer on speaking terms. The testator could leave property that would otherwise go to the spouse to another person. The decision to disinherit the spouse could have been done for no reason whatsoever. Elective share protects the spouse.
The elective share covers bank accounts, retirement plans, pensions, real estate, automobiles, collectibles, jewelry, life insurance policies, assets that were transferred within a year before the testator died, and more.
People should understand elective share laws in Florida
While elective share laws serve a purpose to protect spouses from disinheritance, a way around it is if the parties agreed to a pre or postnuptial agreement before the testator died. In these circumstances, the elective share option would be nullified.
As with any aspect of estate planning and probate, there are laws people might not know or understand. Elective share is one such law. For assistance with making sure an attempted disinheritance does not leave the spouse with nothing from the estate, it is important to have qualified assistance to make an informed determination with how to proceed.
