Florida Elective Share: Elective Estate, Homestead, and Deadlines

Under Florida law, the elective share gives a surviving spouse the right to claim 30 percent of the deceased spouse’s elective estate, regardless of what the will says. It is a floor on spousal inheritance, not an extra helping on top of other inheritances, and it reaches well beyond the probate estate to capture trusts, retirement accounts, joint accounts, and other assets the decedent controlled. To get it, the spouse has to file a written election with the probate court within a strict deadline.

How Much You Actually Receive

The headline number is 30 percent of the elective estate.¹ The practical number is almost always smaller, because property already passing to the surviving spouse counts toward satisfying it. The will, joint accounts, payable-on-death designations, life insurance proceeds payable to the spouse, and the spouse’s homestead interest are all applied first.² If the spouse is already set to receive 25 percent of the elective estate through those channels, filing the election only adds another 5 percent.

The election also cannot shrink what the spouse would otherwise receive. When the will leaves the spouse more than 30 percent of the elective estate, the spouse keeps the larger amount and gains nothing from electing.³ The election is a safety net for a spouse who was cut out or shortchanged; it is not a windfall.

What Counts as the Elective Estate

The elective estate is deliberately broad. The point is to measure the decedent’s true financial footprint rather than the narrower pool of assets controlled by the will. The following categories all count toward the total:⁴

The probate estate, meaning everything passing under the will or by intestacy.
The decedent’s interest in protected homestead.
Payable-on-death and transfer-on-death bank, brokerage, and securities accounts.
The decedent’s fractional share of property held in joint tenancy or tenancy by the entirety.
Property in any trust the decedent could revoke or amend at death.
Property the decedent transferred but kept the right to use, draw income from, or have distributed back.
Property subject to a general power of appointment the decedent held.
Certain large transfers made within one year before death.
The cash surrender value of life insurance on the decedent’s life, measured immediately before death. This is not the death benefit.
Retirement accounts and qualifying pensions, including 401(k) plans and IRAs.

Assets are valued at fair market value, generally as of the date of death.⁵ Business interests and other hard-to-value assets often require a professional appraisal, and valuation discounts for minority or non-marketable interests can become major points of dispute.

Labeling a trust “irrevocable” does not by itself remove it from this calculation. If the decedent kept the ability to use the property, receive income, or have principal distributed back, the trust property still counts. A truly irrevocable transfer is excluded only when the decedent gave up meaningful control and beneficial interest.

What Is Not Counted

Several categories of property stay outside the elective estate:⁶

Property the decedent irrevocably transferred before the marriage.
Transfers the surviving spouse consented to in writing. Signing a federal gift tax return for split-gift treatment does not count as written consent for this purpose.
Non-general powers of appointment, meaning powers the decedent could not use for their own benefit.

How Homestead Affects the Share

The homestead question trips people up. The decedent’s interest in protected homestead is included in the elective estate, and the surviving spouse’s homestead rights (typically a life estate, or an election to take an undivided half-interest as tenant in common) count toward satisfying the 30 percent. The statute values both a life estate in homestead and an elected half-interest at one-half the property’s fair market value.⁵ When the family home is the biggest asset in the estate, the homestead credit can eat up most of the 30 percent before any other property gets reached.

The only time homestead stays out of the elective estate is when the spouse previously waived homestead rights and receives no interest in the property at death.⁶ That exception does not apply to most surviving spouses.

The Deadline to File

The election must be filed by the earlier of two dates:⁷

Six months after the surviving spouse is served with the notice of administration, or
Two years from the date of the decedent’s death, if no notice of administration is served.

Whichever date comes first controls, and missing it permanently waives the right. A personal representative who serves the notice of administration promptly effectively shortens the window, which is sometimes a deliberate tactic in contested estates. The court can grant an extension for good cause, and a pending petition for an extension or for court approval tolls the deadline.⁸

How to File and How Payment Works

The surviving spouse files a written election with the clerk of the circuit court handling the probate. The election identifies the decedent, the probate case number, and the spouse’s intent to claim the share. A copy is served on the personal representative so the estate administration can account for it.

Once the election is filed, the personal representative is required to file a petition asking the court to determine the amount of the elective share. If the personal representative does not file it, the spouse can file it instead and recover reasonable attorney fees from the estate for doing so.⁹ The court then inventories the elective estate, sets its value, calculates 30 percent, and determines what the spouse is still owed after credits.

Any shortfall is collected from other recipients in a set order:²

First, the decedent’s probate estate and revocable trusts.
Second, recipients of payable-on-death accounts, joint tenancy interests, and similar designated assets, with protected charitable interests excluded.
Third, recipients of all remaining elective estate property.

Within each level, contributions are apportioned among the recipients before moving to the next. The will or trust can rearrange this order, so this hierarchy is a default. Final distribution typically takes several months after the court enters its contribution order, since the personal representative may need to liquidate assets and resolve disputes. If the share is not fully paid within two years of death, the unpaid balance begins accruing interest at the statutory rate.¹⁰

Contested elective share proceedings can be expensive. The court has broad discretion to award attorney fees and costs against the estate, against a party’s share, or against a party’s other property.⁹ Both sides face real financial exposure.

Receiving the Share Through a Trust

The 30 percent does not always arrive as a check. Florida allows the elective share to be satisfied through an elective share trust, in which assets are held for the spouse’s benefit rather than distributed outright. To qualify, the trust must:¹¹

Give the spouse the right to use the property or receive all income from it, paid at least annually.
Give the spouse the right to require the trustee to make the property income-producing, or to convert it within a reasonable time.
Prohibit income or principal distributions to anyone other than the spouse during the spouse’s lifetime.

This structure protects the spouse’s income stream while allowing the decedent’s chosen remainder beneficiaries to inherit what remains. A spouse who expected cash may instead receive lifetime income from a trust whose principal they cannot freely reach. Factor this in before electing.

If the Surviving Spouse Lacks Capacity

A spouse who cannot make the decision personally does not lose the right to elect. An attorney-in-fact under a durable power of attorney, or a court-appointed guardian of the property, can file the election on the spouse’s behalf with court approval.⁸ The probate court evaluates whether the election serves the spouse’s best interests over their probable remaining lifetime.

This matters for Medicaid planning. Some state Medicaid agencies treat a surviving spouse’s failure to claim the elective share as a disqualifying transfer, reasoning that the spouse gave away property they were entitled to receive. The agency may deny benefits until the share is claimed and spent down, or push for a guardian who will make the election. A surviving spouse already on Medicaid or likely to need it should consult an elder law attorney well before the filing deadline.

Prior Waivers

The elective share can be waived in whole or in part through a prenuptial or postnuptial agreement. The waiver must be in writing and signed by the waiving spouse in front of two subscribing witnesses, with no additional consideration required beyond signing.¹²

Timing changes the disclosure rules. A waiver signed before marriage requires no financial disclosure. A waiver signed after marriage requires each spouse to make a fair disclosure of their estate to the other, and a postnuptial waiver without disclosure is vulnerable to challenge.¹²

A broad waiver of “all rights” in the spouse’s estate reaches further than many people realize. Unless the agreement says otherwise, it covers the elective share along with the intestate share, pretermitted share, homestead rights, exempt property, family allowance, and preference in appointment as personal representative. For someone who signed a waiver years ago in another state and later moved to Florida, a waiver valid where it was signed will generally be recognized here.

1
The Florida Legislature. Florida Code 732 – Probate Code: Intestate Succession and Wills
2
Florida Senate. Florida Code 732.2075 – Sources From Which Elective Share Payable; Abatement
3
The Florida Legislature. Florida Code 732.201 – Right to Elective Share
4
Florida Senate. Florida Code 732.2035 – Property Entering Into Elective Estate
5
Florida Senate. Florida Code 732.2095 – Valuation of Property Used to Satisfy Elective Share
6
Florida Senate. Florida Code 732.2045 – Exclusions and Overlapping Application
7
Florida Senate. Florida Code 732.2135 – Time of Election; Extensions; Withdrawal
8
The Florida Legislature. Florida Code 732.2125 – Right of Election; By Whom Exercisable
9
The Florida Legislature. Florida Code 732.2151 – Award of Fees and Costs in Elective Share Proceedings
10
Florida Senate. Florida Code 732.2145 – Determination and Contribution; Intent
11
The Florida Legislature. Florida Code 732 – Probate Code: Intestate Succession and Wills – Section: 732.2025
12
Florida Senate. Florida Code 732.702 – Waiver of Spousal Rights