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Elective Share Litigation

Elective Share in Florida

Florida is known as a separate property state, which means a decedent’s surviving spouse may elect to receive what is known as an “elective share.”  An elective share allows a spouse to take a certain percentage of the decedent’s elective estate, which prevents a surviving spouse from being cut out of a will or trust.

Florida offers the elective share to protect the spouse by insuring a spouse cannot be disinherited.  This Florida statute is one of many supportive mechanisms for surviving spouses such as state homestead protection, social security, and employee pension plans.

What is an Elective Share?

When a person dies with a will, his or her estate will pass through probate.  The probate process is lengthy and formal, and it requires that a personal representative administers the estate.  The personal representative will distribute the estate’s assets according to the decedent’s will.  For instance, a will could leave a spouse $100,000, and if the estate had $100,000 after paying the bills, the personal representative would be required to distribute that money to the spouse.

An elective share allows the spouse to choose whether he or she would like to inherit the decedent’s estate through the will or through an elective share, which is a percentage of the estate determined by Florida law.  Usually, a spouse leaves a majority of his or her estate to the spouse.  If this is not the case and the deceased spouse has attempted to disinherit the spouse, then the surviving spouse can take the elective share.  A surviving spouse should also take an elective share if he or she received more through the elective share than the amount the will would provide.

Under Florida law, the elective share for a surviving spouse of a Florida decedent is an amount equal to thirty percent of the elective estate.  Some assets, such as those held in an irrevocable trust, are not part of the elective share estate.  This is why we recommend contacting a Jacksonville estate planning attorney to determine how much your elective share might be.

Reasoning for the Elective Share

Our clients often ask us why elective share laws were created in the first place.  Florida’s primary policy reason for allowing elective shares is the rationale that a surviving spouse has likely contributed to decedent’s acquisition of wealth.  Even if the surviving spouse did not contribute money or assets to the marriage, the surviving spouse offers love and support and other benefits that help assets to appreciate.

How to Receive Your Elective Share

Every surviving spouse has the right to take the elective share.  Sometimes a will may contain a clerical error, or the decedent did not mean to intentionally give his or her spouse less than the elective share amount.  Once the decedent passes, his or will can’t be changed, but the surviving spouse can fix the mistake by taking the elective share.

Are There Time Limits to Claim an Elective Share in Florida?

In Florida, a spouse only has six months after receiving notice of estate administration or 2 years from the date of death to file an election to claim an elective share (Florida Statutes 732.2135).

The Law Office of David M. Goldman PLLC represents individuals and families in Jacksonville and the surrounding areas in Florida Probate and Litigation. Our Jacksonville Probate Attorneys and Ponte Vedra Probate Lawyers work with clients in Florida and with Florida Probate Administration and Disputes.

Not all assets are counted as part of the elective estate. Florida Statute § 732.2035 describes what property is included in the elective share of the decedent's estate..

If you need help with the Probate of a family member who resided in Florida or feel that there is something wrong with the way a Florida Probate is being handled or your assets have not been dealt with fairly, CONTACT our Florida Probate Lawyers by email or call us at 904-685-1200 to discuss your situation today.

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