Surviving Spouse’s Right to Elective Share

When a spouse passes away, the surviving spouse is entitled to make an election for a spousal share.  This overview of a surviving spouse’s right to an elective share applies Florida law.  

What Is An Elective Share?

An elective share, also called a forced share or spousal share, is an option that may be exercised by a surviving spouse related to the decedent’s estate.  By making the election, the surviving spouse is entitled to thirty percent of the decedent’s probate estate. (Florida Statutes §732.2065). Making the election does not reduce what the spouse receives pursuant to a Will or property that was owned by the spouses together.  (Florida Statutes §732.201)  

In one respect, the elective share prevents a spouse from disinheriting their spouse.  In Florida, it is impossible to actually disinherit your spouse because they may choose to make this election.   On the other hand, where a spouse dies without a will, the elective share ensures that the surviving spouse is taken care of before the distribution of the probate property to other descendants or heirs.  

How Does The Surviving Spouse Make The Election?

The election may only be made by either the surviving spouse or an attorney or guardian acting on behalf of the surviving spouse.  If an attorney or guardian is making the election for the surviving spouse, the election can only be made once the court has determined that the election is “in the best interest of the surviving spouse during the spouse’s probable lifetime.”  (Florida Statutes §732.2125)

If you decide to make the elective share, contact an experienced probate attorney who can help you with the appropriate documents and ensure that you meet the deadlines set out by Florida law. 

When Do I Need To Make The Election?

Under Florida law, there are specific deadlines for making the election.  The surviving spouse must file the election either six months after service of notice of the administration to the surviving spouse or within two years after the decedent’s death, whichever date us earlier. (Florida Statutes §732.2135(1)). 

There is an exception that allows the surviving spouse to make the election up to forty days after the termination of any proceeding that would affect the amount the spouse is entitled to be paid.  (Florida Statutes §732.2135(2))

The surviving spouse or their attorney or guardian may ask the court for an extension of time to make the election.  The court will only grant that petition and extend the time if good cause is shown. If the extension is allowed by the court, the election must be made within that extension.  (Florida Statutes §732.2135(2))

An election may be withdrawn by the surviving spouse, their attorney or guardian, or the personal representative of the surviving spouse “any time within eight months after decedent’s death and before court’s order of contribution.”  (Florida Statutes §732.2135(4))

If you have any questions about making the election for your spousal share or want to know more about whether you should make the election, call The Probate Law Firm at (305) 456-3255.  We are here to help you figure out the best options for you. 

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