Florida Elective Share: The Surviving Spouse's 30% Claim

A surviving spouse of a Florida decedent can take 30% of the elective estate even if the will, trust, and beneficiary forms leave the spouse less. That right is the elective share (§732.201 and §732.2065, Fla. Stat.). It exists to stop a Florida-domiciled spouse from being written out of the economic estate by paperwork that looks complete on paper.

Who Can Elect?

The right belongs to the surviving spouse of a person who dies domiciled in Florida (§732.201, Fla. Stat.). Nonresident decedents are outside this statute. Remarriage after the decedent’s death does not, by itself, erase an election already properly made; the statute keys the right to status at death.

A spouse can waive the elective share, before or after marriage, in a written contract signed before two witnesses (§732.702, Fla. Stat.). Post-marriage waivers require fair disclosure of assets. Pre-marriage agreements do not. “All rights” language in a marital agreement usually sweeps in the elective share unless the agreement says otherwise.

What Is the Elective Estate?

The elective share is 30% of the elective estate, not 30% of the probate inventory (§732.2065, Fla. Stat.). The elective estate is a constructed pot under §732.2035, Fla. Stat. It reaches far beyond assets that go through Florida probate:

The probate estate
The decedent’s interest in protected homestead
POD / TOD / ITF accounts and co-owned accounts with survivorship (with specific measuring rules)
Joint tenancy and tenancy-by-the-entireties fractional interests
Property the decedent could revoke alone or with someone else (classic revocable-trust territory)
Certain retained income or discretionary interests
Net cash surrender value of life insurance on the decedent
Many retirement and deferred-compensation survivorship payments (Social Security and Railroad Retirement carved out)
Some transfers in the year before death

The point for planning: retitling an account into a trust, or naming the kids as POD beneficiaries, does not automatically put that asset beyond the elective share. Families who “avoided probate” still face the elective-share math.

Homestead and the Elective Share Are Different Rights

Florida homestead has its own constitutional and statutory track (Art. X, §4, Fla. Const.; §§732.401 and 732.4015, Fla. Stat.). Homestead value can enter the elective-estate calculation under §732.2035(2), Fla. Stat., but the spouse’s homestead life estate or one-half election is a separate set of choices with its own six-month recording deadline under §732.401(2). Do not treat “we handled the house” as “we handled the elective share.”

The Deadline

Under §732.2135, Fla. Stat., the election must be filed by the earlier of:

six months after service of the notice of administration on the surviving spouse (or the spouse’s attorney-in-fact or guardian of the property), or
two years after the decedent’s death.

The court can extend for good cause inside that outer two-year wall. A timely extension petition tolls the clock. The spouse can withdraw an election within eight months of death and before the order of contribution.

Miss the deadline and the right is gone. In blended-family estates this deadline is one of the ones that quietly expires while the family argues about the house.

What Contribution Looks Like in Practice

Once the election is made, other recipients of elective-estate property can be ordered to contribute so the spouse receives the 30% share. That can mean pulling value from children who received POD accounts, trust distributions, or nonprobate transfers. The clean plan either funds the spouse’s share intentionally or documents a valid waiver; leaving it unaddressed is how adult children end up surprised by a contribution order two years later.

Planning Moves That Actually Work

A prenuptial or postnuptial waiver that meets §732.702
Leaving the spouse enough (by will, trust, or nonprobate designation) that the elective share is economically pointless to elect
Coordinating homestead, elective share, and retirement designations in one sitting, not three different years
For second marriages, reading blended-family estate planning next to this page before anyone signs a DIY will

A revocable trust alone is not an elective-share plan. See trust vs. will in Florida for the probate-avoidance question; come back here for the spouse’s statutory floor.

Common Questions

Does the elective share apply if there is no will? Intestacy already gives the spouse a large statutory share under §732.102, Fla. Stat. The elective share is the tool when a will or nonprobate plan underfunds the spouse relative to the elective estate.

Can the spouse elect if the couple was separated? Separation without divorce does not remove the right. Divorce does.

Is life insurance always in? The elective estate includes the decedent’s beneficial interest in the net cash surrender value immediately before death (§732.2035(7), Fla. Stat.) — not automatically the full death benefit. Retirement survivorship payments have their own subsection. Get the classification right before you negotiate.

Reviewed by David A. Shulman, Florida Bar Board Certified in Wills, Trusts and Estates. Last updated July 2026.

Florida Elective Share: The Surviving Spouse’s 30% Claim