A person is entitled to benefit from their deceased spouse’s property. When someone dies, their spouse receives a portion, regardless of what the will says. This portion is called the elective share.
Determining how much the surviving spouse can claim is sometimes complex and it requires the services of an experienced probate lawyer. If a loved one has died and elective share entitlement in South Miami probate is an issue, contact us to sort it out.
Understanding the Elective Share
When a person dies without a will, the laws of intestacy apply. If the surviving spouse had children with the decedent and those children are the only children either spouse has, the surviving spouse receives all the deceased spouse’s property. If either spouse has children who are not descended from both spouses, the surviving spouse receives 50 percent of the estate and the surviving children of the deceased spouse share the remaining 50 percent equally.
The elective share only comes into play when a married person dies with a will that they made after they got married. The law requires a surviving spouse to receive 30 percent of the elective estate, even when the deceased spouse intended to disinherit them. If the amount a spouse receives under a will is less than 30 percent, they can claim their full elective share.
However, when someone made their will before marrying and never updated it to include the new spouse, the laws of intestacy apply. That means the surviving spouse could inherit the entire estate or half of it, depending on whether either spouse has children. Families in South Miami should consult a local attorney to understand whether the elective share entitlement or intestate share would apply in their situation.
Calculating the Amount a Surviving Spouse Receives
Before a spouse can determine the value of their elective share, they must determine the value of a decedent’s holdings that count toward the elective estate. When an estate goes into probate, only some of its assets are counted toward the value of the probate estate. The elective estate is more inclusive.
According to Florida Statute § 732.2035, jointly held assets like bank accounts or real estate are part of the decedent’s elective estate. Retirement accounts with a named beneficiary, pension plan death benefits, and the cash value of life insurance policies are also included in the elective estate, even though they are not a part of the probate estate.
An accurate valuation of the elective estate is essential to ensure the surviving spouse’s share is equitable. Working with an experienced lawyer in South Miami can provide assurance that the entitlement calculations are correct.
Voluntary Waiver of the Elective Share
Couples can avoid the elective share requirement and establish their own plan for distribution of their estate after death by creating a prenuptial or postnuptial agreement. Courts uphold these agreements if they meet all legal requirements.
Marital agreements must be written and signed by both parties. The parties must make full financial disclosure, and each party must have the opportunity to have their own lawyer review the agreement before signing voluntarily and without coercion or duress.
The elective share offers fundamental protections to a surviving spouse and waiving it could leave them vulnerable. Anyone considering waiving the elective share entitlement during probate should consult a skilled South Miami attorney before agreeing to it.
Discuss the Elective Share Entitlement with a South Miami Attorney Today
Understanding how the spouse’s share might impact a particular estate could potentially be complex. Having knowledgeable legal representation is critical.
The Florida Probate & Family Law Firm can help you understand elective share entitlement in South Miami probate. Reach out today to schedule a free case evaluation.