What is the Florida Elective Share Law? In the past, husbands were the financial providers for the family while women stayed home to care for the house and the children. If a husband passed away having executed a will that disinherited his spouse, the surviving spouse and children could be left destitute. To address potential concerns relating to the impoverishment of a disinherited surviving spouse, the Florida elective share statute came into being. Florida Statutes §732.201 states that if a Florida resident dies survived by a spouse, the surviving spouse is entitled to claim a share of the elective estate of his or her deceased spouse. The elective share is 30% of the decedent’s elective estate, and the election may be exercised by the surviving spouse or by the power of attorney or guardian of the surviving spouse with the approval of the probate court. An election to claim the elective share must be filed on or before 6 months after the date the notice of administration has been served on the surviving spouse or 2 years after the death of the decedent, whichever is earlier.
What constitutes the elective estate of the decedent? In the past, the elective estate included only the decedent’s property that was subject to probate. As a result, a spouse could title assets to pass outside the probate estate either by having them pass by operation of law (jointly held assets or “pay on death” designation on an account) or by having them held in a trust to reduce the assets that were included in the elective share calculation. In an attempt to rectify this problem, the Florida legislature revised the elective share statute in 1999 to expand the property that can be included in the elective share calculation for persons who die after October 1, 2001.
In addition to the decedent’s probate estate, examples of assets now included in the elective estate are: decedent’s interest in accounts titled as “Pay on Death,” “Transfer on Death,” or “In Trust For;” decedent’s interest in joint accounts; revocable trusts; one-half of property held as tenants by the entireties; decedent’s fractional interest in property held in joint tenancy with right of survivorship; cash surrender value of any policy of insurance on decedent’s life valued immediately before decedent’s death; value of any pension plan immediately prior to death; and property transferred during the one-year period preceding the decedent’s death.
Likewise, the elective share statute also sets forth assets that are specifically excluded from the elective estate. Some examples of assets that are excluded include: property that has been irrevocably transferred before the effective date of the elective share law or the date of the decedent’s marriage to a surviving spouse; transfers by decedent in which the decedent received full and adequate consideration; transfers made with the written consent of the surviving spouse; proceeds from decedent’s life insurance policy in excess of the net cash surrender value; decedent’s court-ordered life insurance policies; decedent’s one-half interest in community property; property held in a qualifying special needs trust on the date of decedent’s death; and the protected homestead of the decedent.
It is important for married couples to consider the elective share statute when consulting with their attorney regarding their estate plan, especially if they are married to a second or third spouse. There are strategies to address the elective share and meet estate planning goals including elective share trusts or prenuptial or postnuptial agreements in which the spouse voluntarily waives his or her right to claim the elective share. If a spouse is in a nursing home receiving Medicaid benefits, a qualifying special needs trust may be established to address the elective share entitlement and preserve Medicaid eligibility in the event that the community spouse predeceases the institutionalized spouse.