What is elective share law in Florida?

What is elective share law in Florida? In 1975, Florida abolished dower and curtesy and gave surviving spouse’s the right to an “elective share” of the decedent’s estate.  At the time, the elective share could be made against probate assets, so a decedent could still exclude his or her spouse by leaving nothing subject to probate.  In 1999, the Florida legislature substantially revised the elective share laws to make them more expansive and to ensure that a surviving spouse could not be left with nothing. The elective share is an amount equal to 30% of the elective estate.

Attorney Tom Olsen: Let’s take a minute to talk about the elective share law in Florida because a lot of people are unfamiliar with the elective share law. Elective share law in the State of Florida says that by the very fact of being married, your spouse is entitled to a portion of your estate. There are in two categories. Category one has to do with the home that you live in,  your homestead.  If you are a married couple and you own a home jointly with your spouse and one of you passes away, the survivor automatically owns the home. But, let’s say that the husband owns the home in his name only and he passes away.  The elective share law says that the wife is entitled to at least a life estate interest in the home.  With a life estate, you the use the home during your lifetime.

Let’s say that the husband has a will that states that when he dies everything goes to his children from a previous marriage. The wife could step in and say, “I don’t care what his will says. I want what I’m entitled to under Florida’s elective share law including a life estate in his home and 30% of everything else. If the husband owned a home and $500,000, under  Florida’s elective share law, the wife would be entitled to a life estate in the home and 30% of that $500,000.

This really comes to play plate quite often because often people are getting married later in life and they have children from previous marriages and they’ve kept all of their assets separate and in their own names. Then they want us to write a will for them that states everything goes to their children.  And I say, “Look, I can do that for you but you’re going to have to sign a disclaimer that if you pass away, your spouse can step in and say, “I don’t care what his or her will says, I want what I’m entitled to under Florida elective share law”.

If you’re getting married later in life and you’ve got children from previous marriage and you want to protect your wealth for them, the way to do it is with a pre-nuptial agreement.  If you are already married and you didn’t get a pre-nuptial agreement, you can do the same thing through a post-nuptial agreement. With these nuptial agreements, you are simply waiving a right to receive a portion of each other’s estate. Once you do this nuptial agreement, if you still want to leave your spouse something, you are welcome to but you’re no longer obligated to under Florida law. A pre-nuptial agreement is much easier to do and much more likely to stand up if it gets challenged in court. A post-nuptial agreement is much more complicated, more expensive to do and more likely to be successfully challenged in a court action.