The Florida elective share is a statutory right that lets a surviving spouse claim 30% of the deceased spouse’s “elective estate,” regardless of what the will says. Codified in Florida Statutes Chapter 732, Part II (§§ 732.201–732.2155), it is the state’s answer to disinheritance: a Florida resident cannot fully cut a spouse out by leaving everything to children, a trust, or a third party. The elective estate is far broader than the probate estate, which is exactly why this rule surprises so many out-of-state owners and dual-state families.
If you own a Florida condo, a Naples second home, or you’ve recently shifted your domicile south for the tax advantages, this is one of the most consequential and least understood rules you’ll encounter. Below I walk through how it actually works, what gets pulled into the calculation, and the legitimate planning tools that let you honor a spouse’s rights or, where appropriate, plan around them.
What the Florida Elective Share Actually Protects
The policy is simple. Marriage is treated, at least partly, as an economic partnership. Florida doesn’t want a spouse left destitute because the other spouse signed a will (or funded a trust) that ignored them. So the law gives the survivor a floor: 30% of a defined pool of assets.
Two things make Florida’s version distinctive. First, the percentage is fixed at 30%—it does not scale up with the length of the marriage the way some states’ formulas do. Second, and more importantly, the “elective estate” is an augmented estate. The Legislature anticipated that people would try to move assets out of probate to dodge the rule, so the statute reaches well beyond the will.
The Elective Estate Is Bigger Than the Probate Estate
Under § 732.2035, the elective estate sweeps in a long list of property the deceased spouse controlled or benefited from at death, not just what passes under the will. The most commonly overlooked categories include:
- Revocable (living) trust assets — the classic probate-avoidance vehicle is fully counted.
- Pay-on-death and transfer-on-death accounts, plus most jointly held bank and brokerage accounts.
- Life insurance, to the extent of the cash surrender value immediately before death (not always the full death benefit, a nuance many people get wrong).
- Retirement accounts and pension benefits — IRAs, 401(k)s, and similar.
- Property over which the decedent held a general power of appointment, and certain transfers made within one year of death.
- The Florida homestead, which is folded into the calculation under its own valuation rules.
The practical takeaway: the standard “I’ll just put everything in a revocable trust and name the kids” strategy does nothing to defeat a Florida spouse’s elective share. The trust assets are counted as if they sat in the probate estate. Clients moving from states with a more limited “augmented estate” concept are often genuinely shocked by how wide the Florida net is cast.
How the 30% Is Calculated and Satisfied
Computing the elective share is a two-step exercise. First, the personal representative (or the court) values the elective estate and multiplies by 30%. Second, the law looks at what the surviving spouse is already receiving from the decedent—through the will, the trust, joint property, beneficiary designations, and so on—and credits those amounts against the 30%. The spouse is entitled to the shortfall, not a windfall on top of everything else.
If the property the spouse already receives doesn’t cover the 30%, the deficiency is satisfied proportionally from other recipients—the so-called “contribution” provisions in § 732.2075 and § 732.2085. This is where elective-share disputes get expensive: beneficiaries who thought they were receiving fixed gifts can see those gifts clawed back to fund the spouse’s statutory share.
Deadlines Matter, and They’re Short
The right to an elective share is not automatic; it must be affirmatively elected. Under § 732.2135, the surviving spouse generally must file the election by the earlier of six months after being served with the notice of administration, or two years after the decedent’s death. Miss the window and the right is typically lost. An extension can sometimes be requested before the deadline expires, but waiting is dangerous. I’ve seen surviving spouses forfeit six-figure entitlements simply because no one told them the clock was running.
Why Out-of-State and Dual-State Owners Need to Pay Extra Attention
This is where the South Florida reality diverges from the textbook. The elective share generally applies to the estate of a person who was domiciled in Florida at death. Domicile—not where you bought the condo, but where you’ve established your permanent home—drives the analysis. That creates real planning questions for the snowbird who spends winters in Boca and summers up north.
A few scenarios I see constantly:
- You’re still domiciled up north but own Florida real estate. Your home-state spousal-rights law usually governs your overall estate, but your Florida real property may still face ancillary probate here, and Florida homestead protections can independently affect what your spouse and heirs receive.
- You’ve changed domicile to Florida for income-tax reasons. Congratulations on the tax savings—but you’ve also opted into Florida’s elective share and homestead regime, which may be more generous to your spouse (or more restrictive on your freedom to disinherit) than the state you left.
- You and your spouse maintain separate domiciles. Mixed-domicile couples create genuinely thorny conflict-of-laws questions that a generic online will cannot address.
Because so many of our clients keep property and family ties in more than one state, coordination across jurisdictions is essential. For households with a New York footprint, the way title and life estates are handled up north interacts directly with Florida planning—our colleagues’ guidance on is a useful companion read, and the foundational document analysis in their overview of the shows how spousal rights are framed differently from one state to the next.
Legitimate Ways to Plan Around the Elective Share
“Planning around” the elective share does not mean hiding assets—the augmented-estate rules largely defeat that, and fraudulent transfers invite litigation. It means using the lawful exceptions and waivers the statute itself provides.
1. A Valid Marital Agreement (Prenup or Postnup)
The cleanest tool is a written waiver. Under § 732.702, a spouse may waive the elective share—along with homestead, family allowance, and intestate rights—through a properly executed prenuptial or postnuptial agreement. For waivers signed after marriage, fair disclosure of assets is required; for prenuptial agreements, the statute is more permissive but full disclosure remains best practice. This is the most reliable path for blended families and second marriages where each spouse intends to provide for their own children.
2. The Elective-Share Trust
Florida law expressly allows the 30% obligation to be satisfied by funding a qualifying trust for the spouse’s benefit rather than handing over outright control. Sections 732.2025 and 732.2095 recognize an “elective share trust” that counts toward the spouse’s entitlement while keeping the principal in trust—often distributing to children after the surviving spouse’s death. This is invaluable when you want to support a spouse for life but preserve the remainder for kids from a prior marriage.
3. Lifetime Gifting and Timing
Outright gifts made more than one year before death generally fall outside the elective estate (subject to the statute’s specifics and to other fraudulent-transfer and elder-law considerations). Strategic, well-documented lifetime giving—done early and for legitimate reasons—can reduce the elective estate, but it must be handled carefully and never as a deathbed maneuver.
4. Coordinated Beneficiary and Title Planning
Because joint accounts, POD designations, and trust assets are all counted, the goal isn’t to “hide” them but to intentionally direct them so that what the spouse receives already satisfies—or deliberately exceeds, or deliberately falls within a planned trust structure to satisfy—the 30%. Done right, this avoids the contribution litigation that erupts when the math doesn’t line up.
For families anchored in South Florida, our builds these structures with the elective share calculated in advance, so there are no surprises after death. You can also review our overview of Florida probate to understand how the election interacts with administration, and our wills page for how the underlying documents fit together.
Homestead, Family Allowance, and the Rights That Stack On Top
The elective share doesn’t operate in a vacuum. Florida’s constitutional homestead protection (Article X, § 4) restricts how a residence can be devised when there’s a surviving spouse or minor child, and it can independently override a will. The surviving spouse also has a right to a family allowance of up to $18,000 during administration under § 732.403, and to exempt property under § 732.402. These rights are separate from, and in addition to, the elective share. A common and costly mistake is to plan for one while ignoring the others.
The Bottom Line
Florida’s elective share is deliberately hard to evade by accident and entirely possible to plan around on purpose. If you’re a Florida resident—or you’re contemplating making the switch for tax reasons—understand that 30% of a very broadly defined estate belongs to your spouse unless they’ve validly waived it or you’ve structured your plan to honor it intentionally. For dual-state and out-of-state owners, the interaction between Florida’s regime and your home state’s spousal-rights law is the part that trips people up, and it’s exactly the part worth getting right while you can still sign documents. When you’re ready to map it out, reach out to our office and we’ll model the numbers for your specific situation.
Frequently Asked Questions
What is the Florida elective share percentage?
Florida’s elective share is a flat 30% of the deceased spouse’s ‘elective estate’ under Florida Statutes § 732.2065. Unlike some states, the percentage does not increase with the length of the marriage—it is fixed at 30% regardless of how long the couple was married.
Does a revocable living trust avoid the Florida elective share?
No. Assets in a revocable (living) trust are expressly included in the elective estate under § 732.2035. The common strategy of moving everything into a trust to bypass probate does nothing to defeat a surviving spouse’s elective share—those trust assets are counted as if they were part of the probate estate.
How long does a surviving spouse have to claim the elective share in Florida?
Under § 732.2135, the election generally must be filed by the earlier of six months after the spouse is served with the notice of administration, or two years after the decedent’s death. Missing the deadline usually forfeits the right, so it’s important to act quickly.
Can a spouse waive the Florida elective share?
Yes. A spouse can waive the elective share—along with homestead, family allowance, and intestate rights—through a properly executed prenuptial or postnuptial agreement under § 732.702. Postnuptial waivers require fair disclosure of assets. This is a common, fully lawful tool for second marriages and blended families.
Does the Florida elective share apply if I live out of state but own a Florida home?
The elective share generally applies to the estate of someone domiciled in Florida at death. If you remain domiciled in another state, your home-state spousal-rights law usually governs, though your Florida real property may still face ancillary probate and Florida homestead rules here. Mixed-domicile couples should get coordinated multi-state advice.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.
