In estate planning, the person who has control over which parties will receive which assets is referred to as the testator. The testator’s last will and testament can distribute these assets in any manner that they see fit. In cases where a person dies without a will, Florida’s laws concerning intestacy will step in to determine the property rights of relatives.
However, there is a key exception to this rule. The surviving spouses of decedents always have the option to take a portion of the elective estate property. This elective share entitlement in a Coral Gables probate can complicate many estate plans, especially if the spouse is not a major inheritor in a will. A highly skilled probate attorney can provide more information about this elective share and how it affects the overall probate process.
What is the Elective Estate?
In simple terms, the elective estate is the entirety of the decedent’s probate estate. It also includes the decedent’s interest in property that is a homestead asset. According to Florida Statute § 732.2035, it can also include the following:
- Physical property or real estate anywhere in the United States
- Property held in joint tenancy with others
- Pension and retirement plans
- Life insurance policies paid to people other than the surviving spouse
- Transfers made within one year of the decedent’s death
A lawyer can help someone to better understand the concept of an elective estate and how the law determines which assets are eligible for this distribution.
The Spouse’s Elective Share of the Estate
Elective share entitlement in a Coral Gables probate gives all spouses of decedents the right to claim a minimum portion of the decedent’s property. This applies regardless of whether or not a spouse is named as an heir in a will. Under Fla. Stat. § 732.201, all spouses have this right, and Fla. Stat. § 732.2065 says that this share must be 30 percent of the full value of the elective estate.
For example, if a person dies and their elective estate carries a value of $100,000, the spouse is always entitled to a minimum of $30,000. This is not to say that a spouse cannot receive a greater portion of the estate if a decedent’s will declares that they should. This is merely a minimum level of inheritance.
It is easy to see how this portion of the law may cause disputes among family members and heirs. This is especially true when a spouse, in choosing to take an elective share, forces the sale of high-value assets, such as a family home. Talking with an attorney can help individuals craft estate plans that limit the potential impact of this concept.
Call an Attorney to Learn More About Elective Share Entitlement in a Coral Gables Probate Today
Creating an estate plan that ensures that the proper parties receive the correct assets is always difficult. Making matters even more complicated is the fact that a surviving spouse always has the option to take their elective share entitlement in a Coral Gables probate. This means that even if a will does not mention a spouse, or the decedent dies intestate, a spouse can always take at least 30 percent of the elective estate assets.
Reach out to The Florida Probate & Family Law Firm now with your questions about elective shares. Whether you are a spouse looking to collect on a portion of an estate, or a planner looking to limit the possible impact of this rule, one of our attorneys may be able to help. Contact us now to get started with a free consultation.