When you create an estate plan using a will or trust, you can determine how your property is divided after you pass away. However, state law can override those decisions under limited circumstances, with one example being the elective share.
Elective share entitlement in Florida probate cases falls to the deceased person’s spouse. It gives them the right to inherit a minimum amount of an individual’s estate, even if they were otherwise disinherited. A dedicated probate attorney can answer questions about how this rule may impact your inheritance.
What is the Elective Estate?
Before a judge can determine what a surviving spouse is owed, they must identify the elective estate. This generally includes all shared property, even those not considered probate assets. Some examples that may not be included in the probate estate include life insurance policies, valuables held in revocable trusts, and retirement accounts.
The court must consider what a person owns when they pass away before determining what share the surviving spouse is entitled to recover. This prohibits the creator of a will or trust from using these documents to exclude or disinherit their spouse entirely.
Understanding the Elective Share
In a Florida probate, a surviving spouse is typically entitled to retain the elective share of the deceased person’s property. This includes 30 percent of the elective estate, often a more significant percentage of what will go through the probate system.
This law was written specifically to benefit current spouses of deceased individuals. That means it does not apply in divorce cases. The nature of the relationship is also not relevant. Two people could have intended to divorce or lived apart for years, but the share is valid if they were legally married at the time of death. Some items will remain out of reach of the elective share, such as property held in living trusts.
Instances When the Elective Share Rules Do Not Apply
There are situations during a Florida probate in which elective share entitlement is unnecessary or can be avoided. A valid prenuptial or postnuptial agreement is the most direct way for someone to impact these rights. Both types of contracts have the power to waive the share by a spouse. This might be a condition of one party marrying the other, although some couples waive these rights to protect their children’s inheritance from other relationships.
It is also important to note that this system is designed to protect a spouse who has been disinherited. That is an uncommon outcome, meaning reliance on the elective share is often unnecessary. Not only are many spouses awarded the vast majority of the estate through a will or trust, but state law generally provides more for heirs of someone who dies without an estate plan. In this scenario, it is typically better to accept the amount provided by law.
Contact a Reliable Probate Attorney in Florida to Discuss Elective Share Entitlement Today
If you believe you are entitled to the elective share in a Florida probate case, now is the time to talk to a knowledgeable lawyer. Securing professional legal counsel can protect your rights and provide answers to any questions you might have along the way.
Reach out to The Florida Probate & Family Law Firm today to schedule a free case evaluation.