As a probate attorney, I frequently meet spouses who are surprised to learn that the provisions left for them in their deceased spouse’s will are not as ironclad as they might seem (or as he or she “promised” during their lifetime…eek). In Florida, if a surviving spouse feels that the amount left to them in the will is insufficient, they have the legal right to claim an elective share. But what exactly does this mean, and how does it work?
In this article, I’ll explain Florida’s elective share law, who qualifies for it, the assets included in the elective share, deadlines for filing, and what happens if you miss those deadlines or don’t have proper legal representation. If you’re a surviving spouse in Florida, this is crucial information to understand your rights and ensure you receive what the law entitles you to.
What is Elective Share?
Elective share is a legal provision in Florida that allows a surviving spouse to claim a percentage of their deceased spouse’s estate, regardless of what the will says. This law exists to prevent a spouse from being disinherited or left with an inadequate portion of the estate.
In Florida, the elective share entitles the surviving spouse to 30% of the “elective estate.” The elective estate is broader than just probate assets, meaning that more than just the assets that go through probate can be considered when calculating the elective share.
Who Qualifies for Elective Share in Florida?
Not every surviving spouse will be in a position to claim elective share, but most spouses are eligible under Florida law, provided they are legally married at the time of death. This includes surviving spouses of individuals who may have passed away with a will that provides little or nothing for them, or even those who died intestate (without a will).
However, it’s important to note that you do not qualify for an elective share if you have previously waived your right to it. This could happen if you and your spouse signed a valid prenuptial or postnuptial agreement that specifically waived the elective share right.
What Assets Are Included in the Elective Estate?
One of the most significant aspects of Florida’s elective share law is that it looks beyond the assets included in probate. The “elective estate” covers a wide array of assets, both inside and outside the probate process, including:
- Probate Assets: These are the assets that pass under the terms of the deceased’s will, such as personal property, real estate, and bank accounts.
- Jointly Held Property: Property held as joint tenants with rights of survivorship or tenants by the entirety is included, as are joint bank accounts or real estate owned jointly with others.
- Revocable Trusts: If the deceased spouse created a trust, the value of the assets held in the trust can be part of the elective estate calculation.
- Retirement Accounts and Life Insurance: Certain non-probate assets, like retirement accounts and life insurance policies that name beneficiaries other than the surviving spouse, may be included, depending on the circumstances.
- Gifts Made Shortly Before Death: If the deceased gave away assets within one year of their death in an attempt to avoid including them in their estate, these gifts may be considered part of the elective estate.
- Certain Payable-on-Death Accounts: Bank or investment accounts that were set up to transfer to beneficiaries upon death may also be included in the elective estate.
Not every asset is subject to elective share claims, and the calculation can get complicated, especially when you factor in jointly owned assets and trusts. That’s why it’s critical to have knowledgeable legal representation to ensure the correct value of the elective estate is determined.
How to File for Elective Share: Deadlines Matter
If you’re considering an elective share, time is of the essence. Florida law imposes strict deadlines for filing, and missing these deadlines can be costly.
- Deadline to File: In Florida, a surviving spouse must file a petition for elective share within six months from the date of service of the notice of administration or two years from the decedent’s date of death—whichever comes first. This timeline can pass quickly, especially during a period of grief and emotional turmoil, so it’s crucial to act promptly.
- Formal Filing: The petition must be filed with the probate court handling the decedent’s estate, and the court will then oversee the process to ensure the proper amount of elective share is determined and distributed. Once filed, the court will calculate the elective share based on the assets in the elective estate.
- Negotiating with Beneficiaries: In some cases, it might be possible to reach a settlement with the beneficiaries named in the will without going through litigation. But this is not guaranteed, and you should be prepared for the possibility of disputes if family members feel entitled to certain portions of the estate.
What Happens If You Don’t Timely File or Have Appropriate Representation?
Failing to timely file for elective share can result in losing the right to claim any portion of the estate beyond what was specified in the will. This is a harsh reality, but it’s essential to understand the potential consequences.
- Loss of Rights: Once the deadline passes, your ability to claim an elective share disappears, and you are stuck with whatever the will dictates. If the will leaves you nothing or an amount that you believe is unfair, you will have no legal recourse after the deadline.
- Complex Calculations: Even if you file on time, calculating the value of the elective estate can be challenging. Without the help of an experienced attorney, you may leave out assets or undervalue the estate, which could reduce the amount you ultimately receive. It’s not uncommon for estates to include various types of trusts, joint property, and non-probate assets, and these require expertise to handle appropriately.
- Disputes with Beneficiaries: Elective share claims can lead to tension and disputes with other beneficiaries, especially if they feel that your claim will reduce their inheritance. A skilled probate attorney can help mediate these disputes and ensure that your rights are respected without unnecessarily increasing family conflict.
- Tax Implications: Proper legal advice can also help you navigate the potential tax consequences of receiving an elective share. While the elective share itself is not usually taxable, certain assets included in the elective estate may carry tax implications.
The Importance of Representation
Given the complexity of elective share laws in Florida, it is critical to have proper legal representation throughout the process. A knowledgeable probate attorney can ensure that your petition is filed on time, that the proper value of the elective estate is calculated, and that your rights as a surviving spouse are fully protected.
Without appropriate legal guidance, you risk losing out on the share of the estate that Florida law entitles you to. If you find yourself in a situation where the terms of your spouse’s will leave you with little or nothing, don’t hesitate to explore your options under the elective share law. Time is crucial, and the right legal representation can make all the difference in protecting your financial future.
If you’re a surviving spouse in Florida and are concerned about your inheritance, reach out to a probate attorney as soon as possible. We can help you navigate the complexities of elective share law and ensure that you receive the portion of the estate that the law entitles you to. Remember, you don’t have to accept what’s left to you in the will—you have rights, and with the right steps, you can secure your rightful share.
