The Crucial Role of Elective Share in Florida
Hi, this is Barry Haimo. Thank you for stopping by for a dose of Bite-Sized Bits of Knowledge, where we give you meaningful information in a short amount of time. Today, we’re going to talk about the concept of elective share. Elective share is really something very interesting.
You cannot disinherit your spouse in Florida. You have to move to Georgia to do that. If you disinherit your spouse or you give your spouse less than the magic number, which is 30% of your elective estate, your spouse can elect to take 30% of your elective estate. The elective estate is your probate estate plus things that pass outside of probate. So it could be a lot more than you think. And it is a process.
It requires affirmative filings. It requires disclosures in the probate process that we just talked about. So, it’s really important to understand that spouses in Florida have rights. They have the rights to inherit. We mentioned them, subsequent partners and subsequent spouses, in my brief overview.
At a high level, this is where it kicks in. They have rights to your assets. If you want your assets to go to your family and not a subsequent spouse, you guys do some planning because elective share will kick in. They have the rights if they execute those rights. If they exercise those rights, it’s what’s going to happen. It’s very simple.
So please understand elective share is important to take into consideration in your plan or decision not to plan. Thank you for stopping by, and stay tuned for more.
Essentially, as the video mentions, a surviving spouse is entitled to at least 30% of the deceased’s elective estate. The elective estate consists of the probate estate plus assets that pass outside of probate. It becomes applicable when a spouse is cut out or receives less than he or she is otherwise entitled to receive under the law.
An affirmative election is required, and an adversarial process ensues. Nobody is happy in these circumstances because their expectations differ from reality, and resolving them costs money and time. Thoughtful planning should always be used to address the issues relating to elective share.
Does Every Husband or Wife Have a Right to an Elective Share?
As per Florida legislation, the “surviving spouse of an individual who passes away while being a legal resident of Florida has the privilege to a portion of the elective estate.” This statement stands without any additional conditions.
To put it differently, the surviving spouse can request an elective share, irrespective of how long the marriage lasted. This entitlement stands even if the couple was in a state of separation at the time of the deceased spouse’s demise. As long as the marital bond was legally intact, the surviving spouse’s elective share entitlement remains unaltered.
How Can You Prevent the Elective Share?
The most straightforward method to prevent the potential claim of an elective share is for you and your spouse to execute a prenuptial or postnuptial agreement renouncing such a right. These agreements hold legal validity as per Florida law.
Indeed, it’s a relatively common practice to mutually consent to these waivers, especially for individuals entering marriage for a second or third time. The aim is to shield the inheritances of their children from previous relationships.
Additionally, you can exclude specific assets from your elective estate by transferring them into an irrevocable trust. Unlike a revocable trust, which allows you to take back assets from the trust until your passing, an irrevocable trust vests control of the trust’s assets with an impartial third-party trustee. However, constructing these trusts demands meticulous planning to steer clear of any potential challenges from spouses or other creditors.
In some cases, a married person will die without a Last Will and Testament or estate plan of any kind. When this happens, the estate is deemed “intestate,” meaning that any assets will pass per Florida law. This means the surviving spouse may stand to inherit any assets by default.
The one exception to this rule is blended families when spouses have children from previous relationships. If an estate is intestate in the case of a blended family, Florida Statute 732.102 will apply:
- The surviving spouse will receive half of the estate
- The remaining amount of the estate will be divided up among children
Pretermitted Spousal Share
It’s important to understand the flip side of the above scenario: when a person gets married after making a will, neglects to update it, and the spouse survives the decedent. In this case, the surviving spouse will receive a spousal elective share as defined in 732.201:
“The surviving spouse of a person who dies domiciled in Florida has the right to a share of the decedent’s elective estate, as provided in this part, to be designated the elective share. The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.”
This is true unless one of the following conditions applies under Florida Statute 732.301:
- A prenuptial or postnuptial agreement provides for the spouse or includes a waiver by the spouse
- The will provides for the spouse
Reflecting on Florida’s Elective Share Rule
Florida’s Elective Share Rule is critical to estate planning and inheritance rights. As we’ve explored, this legal provision ensures that surviving spouses maintain a fundamental claim to a portion of the deceased spouse’s elective estate, regardless of the length of the marriage or the circumstances at the time of passing. This rule seeks to balance the interests of spouses and heirs, often preventing contentious legal battles that could arise without such safeguards.
Contact Haimo Law today. Whether you’re currently creating your estate plan or considering adjustments to an existing one, take the time to understand the implications of Florida’s Elective Share Rule.