When dealing with probate, surviving spouses have specific rights that protect their financial interests, even if the will does not leave them much or anything at all. This protection is called an elective share entitlement in a West Miami probate, and it allows you to claim a portion of what your deceased spouse left behind.
A probate attorney can help you understand your rights as a surviving spouse, file the proper elections, and make sure you receive the fair share of the estate you are legally entitled to under state law.
What Is Elective Share Entitlement?
Under state law, one spouse is prohibited from completely disinheriting the other in their estate. This legal principle encompasses both the will and other parts of the estate. If one spouse has tried to disinherit the other, there are remedies available under state law. The spouse can claim thirty percent of the elective estate. Elective share entitlement is broader than the will. In a West Miami probate, it encompasses probate assets, certain non-probate assets such as revocable trusts, jointly owned property, payable-on-death accounts, and some lifetime transfers made by the decedent.
The spouse must make a formal election to receive this entitlement, giving them a measure of protection in what may otherwise be a difficult situation. Having a probate lawyer’s guidance is therefore critical.
How To Claim an Elective Share Entitlement
Claiming an elective share entitlement under Florida Statutes § 732.201 requires following specific state procedures and strict deadlines. First, the surviving spouse, or their authorized representative, must file a formal Notice of Election to Take Elective Share with the probate court handling the estate. This must be done within six months of receiving the Notice of Administration, though the court may grant limited extensions if requested before the deadline. The election cannot be filed more than two years after the decedent’s death.
Once the election is filed, the personal representative must identify and calculate the elective estate, which includes probate and certain non-probate assets. The spouse may need to provide financial information, respond to discovery requests, and participate in the valuation of assets. The court then determines the amount owed, and the estate must contribute its proportional share. Legal guidance from a West Miami attorney is critical because timing, documentation, and asset classification heavily influence the final elective share amount in a probate.
Legal Issues Surrounding an Elective Share Entitlement
Elective share entitlements in Florida can raise several legal issues. Determining which assets are part of the elective estate can be challenging, as it includes:
- Lifetime gifts
- Probate property
- Jointly held assets
- Certain non-probate transfers
Disputes often arise over asset valuation, timing of transfers, or whether specific property counts toward the elective share. Procedural errors, such as missing the six-month election deadline, can forfeit a spouse’s rights. Conflicts may also occur between the surviving spouse and other beneficiaries, especially if the estate planning documents attempt to reduce the elective share.
Disagreements over real estate, business interests, or retirement accounts are common, and litigation can also arise when wills, trusts, or other strategies attempt to minimize the elective share. Because of these issues, it is key for surviving spouses to work with a West Miami lawyer who can protect their rights, manage probate procedures, and help ensure they receive their entitled elective share.
Contact a West Miami Attorney About Elective Share Entitlement in a Probate
If you are a spouse dealing with an estate issue and need help understanding your elective share entitlement in a West Miami probate, speak with a lawyer at Florida Probate & Family Law Firm. We can evaluate your situation and explain what actions to take to claim what is yours under state law. Contact us today to schedule an initial consultation.