If you and your spouse are estranged, and one of you is threatening to cut the other out of the will, you have recourse to take an elective share, available to both husbands and wives. The spousal elective share is a portion of the deceased spouse’s estate that the surviving spouse can claim no matter what the will provides, if one exists.

The process is complicated because the share that a widow or widower can claim is based on more than the probate estate. It does not matter how the deceased remembers other beneficiaries and heirs while leaving a spouse disinherited or with a nominal bequest, nor does the length of the marriage matter. If you are interested in knowing more about elective share entitlement in a Kendall probate, our local probate law attorneys are available to evaluate your case.

Elective Shares

The spousal elective share in Florida is 30 percent of the estate, but it includes property that is exempt from probate, which benefits the surviving spouse and may come as an unpleasant shock to beneficiaries counting on what they believed would be theirs.

Under Florida Statute § 732.2035, property included in the elective estate includes the probate estate and the decedent’s:

  • Net cash surrender value in a life insurance policy just prior to death;
  • Retirement accounts and private pension;
  • Percent interest in a real estate joint tenancy with survivorship rights
  • Interest in homesteaded property;
  • Bank or securities accounts that would transfer outside of probate, such as pay on death;
  • Property transferred prior to death from a revocable trust.

Attorneys can determine the percentage of property the decedent owned (outside of what is subject to probate) to arrive at the proper amount  – upon which the 30 percent will be taken as an elective share. 

The Net Elective Estate

After identifying assets and figuring the decedent’s percentage ownership, it is important to note the surviving spouse’s net elective estate is calculated as the sum of the elective estate, minus the decedent’s liabilities. Legitimate creditors are paid before anyone else, although the spousal elective share is paid next, before moving on to others in the will or any revocable trust.

Deadline for Filing an Elective Entitlement

Once an interested party files a petition to probate an estate, the executor named in the decedent’s will notifies creditors and beneficiaries about the formal probate administration

A spouse in Kendall who decides to claim an elective share has six months from receiving that notice, or two years from the decedent’s death, whichever event occurs first. If an election is filed, the personal representative notifies all interested parties, who will have a chance to contest it through the courts. Attorneys are skilled at handling every aspect of probate, including elective share entitlement, and representing a beneficiary who disputes one.

Waiving the Right to Elective Shares

Many couples waive the right to claim elective shares in a prenuptial or postnuptial agreement. This is common if the spouses have children from previous marriages and marry late, after children are adults, and after acquiring wealth throughout their lives. They may choose to leave their estates to their children and avoid claiming an elective share.

Learn How an Attorney Can Oversee Elective Share Claims in Kendall Probate

If you are married and your spouse dies, leaving you with little or nothing in the will, Florida law offers a solution on the basis that marriage is a partnership that both spouses contribute to and both should share in the wealth they built.

Even if you were only married a short time, you can file a claim for an elective share totaling 30 percent of the decedent’s estate, including assets that avoid probate. The Florida Probate & Family Law Firm assist spouses exploring elective share entitlement in Kendall, as well as personal representatives and other beneficiaries. Call today for a free case evaluation.