Florida’s Elective Share Explained: What Your Spouse Can’t Be Cut Out Of

When it comes to estate planning, many people assume they have full freedom to decide who gets what when they pass away—even if that means leaving a spouse out of a will or trust. But in Florida, that’s not always possible. Thanks to the state’s elective share law, a surviving spouse is entitled to a portion of the deceased spouse’s estate, regardless of what the estate planning documents say. This law protects surviving spouses from being completely disinherited, even in cases of estrangement or blended family dynamics.

Florida’s elective share statute (Fla. Stat. § 732.201–732.2155) provides that a surviving spouse may claim 30% of the elective estate of their deceased spouse. The elective estate is more expansive than the probate estate—it includes not only assets that would go through probate, but also many non-probate assets such as revocable trusts, jointly held property, retirement accounts, life insurance policies (if payable to a beneficiary other than the spouse), and even certain gifts made shortly before death. This broad definition is intentional: it's meant to prevent someone from sidestepping the law by moving assets outside of probate.

A surviving spouse must affirmatively elect to claim the elective share, usually within six months after being served notice of the estate administration or within two years of the date of death, whichever is earlier. If they don’t make the election within that timeframe, the right to claim it is waived. In some cases, a spouse may voluntarily waive their right to the elective share in a valid prenuptial or postnuptial agreement, which is why it’s crucial to involve an estate planning attorney when drafting or reviewing such documents.

The elective share can have major consequences in estate administration—especially if the deceased spouse intentionally left their partner out of the estate plan or if most of the assets were held in trust. For blended families, this law can create tension between the surviving spouse and adult children from a previous marriage. That’s why estate planning in Florida must take this rule into account from the outset, using strategies that both respect your wishes and comply with the law.

At The Warnock Law Group, we help Florida families navigate complex spousal rights and design estate plans that are legally sound, fair, and built to reduce the likelihood of disputes. Whether you’re planning your estate or concerned about your spousal rights after a loved one’s passing, we’re here to help you understand your options and protect your future.

Contact us today to learn more about Florida’s elective share and how to plan around it with confidence.

For a free consultation regarding Estate Planning or for further help with the process please contact us at:

(239) 437-1197

6843 Porto Fino Cir,

Fort Myers, FL 33912, USA

law@warnocklawgroup.com

Florida's elective share