Florida’s elective share is a statutory right that lets a surviving spouse claim 30% of a deceased spouse’s “elective estate,” regardless of what the will or trust actually says. It exists so one spouse cannot quietly disinherit the other by leaving everything to children, a charity, or a new partner. For families on Long Island whose parent has retired to Florida or split time between the two states, this single rule can override years of New York estate planning the moment Florida becomes the legal domicile.
I have sat across the table from too many adult children who assumed Dad’s will controlled everything, only to learn that his second wife was entitled to nearly a third of an estate the children believed was theirs. The elective share is not a loophole or an obscurity. It is hard-coded into Chapter 732 of the Florida Statutes, and it is one of the most consequential things an out-of-state family can misunderstand.
What the Florida Elective Share Actually Is
The elective share is set out in Florida Statute §732.2065, which fixes the surviving spouse’s entitlement at 30% of the elective estate. The companion statute, §732.2035, defines what goes into that estate. The key word is elective. The spouse “elects” to take this statutory share instead of whatever the deceased spouse left them under the will, the trust, or by default.
Crucially, this is not the same as the probate estate. A common, expensive mistake is to assume that pour-over wills, revocable living trusts, and beneficiary designations sidestep the spouse. They do not. Florida deliberately drew the net wide so that the elective share cannot be defeated through ordinary nonprobate transfers.
What Counts Toward the Elective Estate
Under §732.2035, the elective estate sweeps in far more than the assets passing through probate. It generally includes:
- The probate estate, meaning assets titled in the decedent’s sole name.
- The decedent’s interest in protected homestead property.
- Pay-on-death and transfer-on-death accounts, plus accounts with named beneficiaries.
- Property held in a revocable living trust, the very vehicle many people use precisely to avoid probate.
- The net cash surrender value of life insurance on the decedent’s life.
- Certain joint accounts and property the decedent transferred within one year of death without adequate consideration.
- Amounts payable from pension, retirement, and similar plans.
This is why families are so often caught off guard. A parent can title nothing in his own name, fund everything into a trust, and still owe his surviving spouse 30% of the combined value. The structure that defeats probate does not defeat the elective share.
Why This Matters Most in Blended Families
The elective share rarely causes friction in a first, lifelong marriage where the spouses leave everything to each other. The conflict erupts in second marriages and blended families, which is exactly the scenario adult children planning for an aging parent should watch.
Picture a familiar situation. Your widowed father remarries in his seventies, moves to Boca Raton, and writes a will leaving his assets to you and your siblings while providing his new wife a modest bequest. He believes he has honored both his children and his spouse. When he dies, his wife files for the elective share and is entitled to 30% of an elective estate that may include the Florida home, his IRA, and the trust he created decades ago in New York. The will’s plan is partially undone by operation of law.
None of this requires bad faith on anyone’s part. It is simply how Florida balances a surviving spouse’s statutory protection against a decedent’s freedom to distribute property. Understanding it early is the difference between a coordinated plan and a contested probate.
How the Surviving Spouse Claims the Elective Share
The right is not automatic. The surviving spouse, or an attorney-in-fact or guardian acting on the spouse’s behalf, must affirmatively elect it. Under §732.2135, the election must generally be filed within the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the window, and the right can be lost.
Once elected, the share is satisfied according to the order set out in §732.2075, which dictates which assets and which beneficiaries contribute, and in what sequence, to fund the spouse’s 30%. Property already passing to the spouse counts toward satisfying the share first. The mechanics get technical quickly, and the contribution rules are where litigation tends to concentrate.
Planning Around the Elective Share Lawfully
The elective share is a default rule, not an unbreakable one. Florida law provides legitimate ways to plan around it, but each has strict formalities, and improvising is dangerous.
1. Waiver by Written Agreement
The cleanest path is a waiver of spousal rights under §732.702. A spouse or prospective spouse can waive the elective share, intestate share, homestead, exempt property, and family allowance through a written agreement signed by the waiving party in the presence of two subscribing witnesses. This is most often handled in a prenuptial or postnuptial agreement.
Two points trip people up. First, a prenuptial agreement signed before marriage does not require financial disclosure to be valid for this purpose, but a postnuptial agreement signed during the marriage does require fair disclosure of assets. Second, language matters: a waiver of “all rights” in the spouse’s estate is generally read as a waiver of the elective share as well. Vague drafting invites challenge.
2. Provide for the Spouse Through Qualifying Structures
You do not have to choose between protecting children and protecting a spouse. A properly drafted elective share trust can satisfy the spouse’s entitlement while keeping the remainder for the children after the spouse’s death. The trust must meet statutory requirements for the income interest and control to count toward the share, which is precisely the kind of drafting that should never be left to a form. For families coordinating across state lines, integrating these structures with New York-based vehicles, such as a pooled income trust strategy, requires counsel who works in both jurisdictions.
3. Coordinate Homestead and Lifetime Transfers Carefully
Florida’s homestead protections interact with the elective share in ways that surprise even experienced out-of-state advisors. Lifetime gifting can reduce the elective estate, but transfers made within one year of death without adequate consideration are pulled back in under §2035. Retained-interest arrangements such as a life estate must be structured deliberately; a poorly executed transfer can create more problems than it solves. The same caution applies in New York, where families often explore home transfers and retained life estates for the residence before any move south.
The Long Island to Florida Domicile Trap
Here is the issue that catches Long Island families specifically. The elective share applies when the decedent dies domiciled in Florida. Domicile is not the same as where the deeds sit or how many months are spent at the condo. It turns on intent: voter registration, driver’s license, where taxes are filed, where the “home base” truly is.
A parent who establishes Florida domicile for income-tax reasons, a sensible move, simultaneously imports Florida’s elective share regime. The carefully drafted New York plan may not anticipate it. This is why a domicile change should always trigger a full estate-plan review, not just a change of address.
- Confirm where the parent is legally domiciled, not merely where they spend winters.
- Re-examine any will, trust, and beneficiary designations against Florida’s elective share and homestead rules.
- Decide affirmatively whether to provide for, or plan around, the surviving spouse, and document it with the correct formalities.
- Coordinate the Florida and New York pieces so they do not contradict each other.
For the Florida side of a cross-border plan, our colleagues handle Florida estate planning directly, while we keep the New York structures aligned. You can review our broader approach to wills and trusts or learn how Florida probate unfolds when a plan is contested.
The Bottom Line
Florida’s elective share guarantees a surviving spouse 30% of a broadly defined estate, and it overrides wills, trusts, and beneficiary designations unless it has been properly waived. For adult children helping an aging parent who has put down roots in Florida, the worst outcome is discovering this rule during probate. The right time to address it is now, while the parent can still sign a valid waiver, fund a qualifying trust, or simply make an informed decision about what the surviving spouse should receive. To talk through a cross-border plan, contact our office.
Frequently Asked Questions
How much is the Florida elective share?
Under Florida Statute 732.2065, the elective share is 30% of the decedent’s elective estate. The elective estate is broader than the probate estate and includes homestead property, revocable trust assets, pay-on-death and transfer-on-death accounts, certain life insurance values, and retirement plan amounts.
Can a revocable living trust avoid the Florida elective share?
No. Property held in a revocable living trust is specifically included in the elective estate under Florida Statute 732.2035. A trust can defeat probate, but it does not defeat a surviving spouse’s elective share. Avoiding the share lawfully requires a valid waiver or a qualifying structure, not simply moving assets into a trust.
How can a spouse waive the Florida elective share?
A spouse can waive the elective share under Florida Statute 732.702 through a written agreement signed in the presence of two subscribing witnesses, typically a prenuptial or postnuptial agreement. A postnuptial agreement requires fair financial disclosure to be enforceable, while a prenuptial agreement signed before marriage does not.
What is the deadline to claim the elective share in Florida?
Under Florida Statute 732.2135, the surviving spouse must generally file the election within the earlier of six months after service of the notice of administration or two years after the decedent’s death. Missing this deadline can forfeit the right entirely.
Does Florida's elective share apply if my parent lived in New York?
The elective share applies when the decedent dies domiciled in Florida. If a Long Island parent has changed legal domicile to Florida for tax or residency reasons, Florida’s elective share rules apply even if much of the family’s planning was done in New York. A domicile change should always prompt a full estate-plan review.
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