Elective Share

The Florida Constitution and Florida Statutes offer protection for spouses so that one cannot be left penniless if his or her spouse dies and tries to leave the estate to somebody else. The Elective Share Law is a Florida statute that provides that the surviving spouse receives thirty percent of the decedent’s estate if the surviving spouse “elects” to take that instead of what is left for the spouse by will. Thus, if a deceased spouse attempts to disinherit the surviving spouse, the surviving spouse can elect to take the thirty percent instead.

The property included in the elective estate (that is the property subject to the elective share) includes property that is subject to probate as well as property that passes automatically to beneficiaries. Probate is the court supervised administration of an estate. Probate assets are those that are held in the decedent’s name alone. The probate estate does not include property held in a revocable trust, property held in a P.O. D. or T.O.D. account, jointly owned property, property that has a designated beneficiary and other types of ownership where the property passes automatically upon death. But the Elective Share calculation includes probate and non-probate assets, so assets held with a right of survivorship or with a beneficiary designation can actually be acquired by the surviving spouse.

The elective share is equally applicable regardless of whether the surviving spouse is the husband or wife. A competent spouse can waive his or her right to elective share by signing a valid prenuptial agreement or post nuptial agreement. The elective share statute also permits a person to create an elective share trust or a special needs trust, which places money aside in a trust for the other spouse’s use; the amount placed in such a trust can reduce the portion of the estate that is subject to the elective share.

Attorney Michael A. Pyle, of Pyle, Dellinger & Duz, PLLC. 1655 North Clyde Morris Blvd., Ste. 1, Daytona Beach. Phone: 386.615.9007. e-mail: mikep@pylelegal.com or website: www.pylelegal.com