Florida Elective Share: What Surviving Spouses Can Claim

In Florida, the surviving spouse of someone who dies domiciled in the state can choose to take an "elective share" of 30% of the elective estate, no matter what the will or trust says (Fla. Stat. §§732.201, 732.2065). The elective estate is broad. It includes:

• the probate estate;
• revocable trusts;
• payable-on-death and transfer-on-death accounts;
• the decedent's share of jointly owned property;
• retirement accounts;
• the cash value of life insurance;
• certain gifts made in the last year of life.

What the spouse already receives counts toward the 30%. The election must be filed by the earlier of 6 months after the spouse is served with the notice of administration or 2 years after death (§732.2135). A spouse can give up the right in a prenuptial or postnuptial agreement signed before two witnesses (§732.702).

At a glance

Who can claim the elective share

The right belongs to the surviving spouse of a person who dies domiciled in Florida. Section 732.201 reads in full: "The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent 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." The spouse can make the election personally. An attorney in fact or a guardian of the spouse's property can elect only with court approval, after the court finds the election is in the spouse's best interests during the spouse's probable lifetime (§732.2125).

A former spouse isn't a surviving spouse. Separately, Florida law voids a will's provisions for a spouse after divorce or annulment unless the will says otherwise (§732.507(2)).

What the 30% is measured against: the elective estate

The share is 30% of the elective estate, not just the probate estate (§732.2065). Under §732.2035, the elective estate includes:

1. The probate estate.
2. Protected homestead (valued as described below).
3. POD, TOD and survivorship accounts and securities. If held as tenants by the entirety, one-half counts; otherwise, the part the decedent could have withdrawn counts.
4. The decedent's share of jointly owned property. For joint tenancy with right of survivorship and tenancy by the entirety, that's the property's value divided by the number of tenants.
5. Revocable transfers. Property the decedent could revoke at death, such as assets in a revocable living trust.
6. Retained-interest transfers. Property the decedent transferred but kept the income or use of, or whose principal another person (not the spouse) could distribute to the decedent.
7. Life insurance cash value. The net cash surrender value, immediately before death, of policies on the decedent's life. Death benefit above that cash value isn't included (§732.2045).
8. Retirement and deferred compensation payable to anyone because they survived the decedent. Social Security and Railroad Retirement benefits are excluded.
9. Certain gifts in the last year of life. Two things are carved out: payments for medical or tuition expenses that qualify under IRC §2503(e), and, after that, the first annual-exclusion amount per recipient. For 2026 the annual exclusion is $19,000 (Rev. Proc. 2025-32).
10. Property transferred to satisfy the elective share.

This is why a revocable trust or beneficiary designations alone don't defeat the elective share in Florida.

What isn't counted

Section 732.2045 excludes, among other things:

• transfers that became irrevocable before the current law took effect or before the marriage;
• transfers for adequate consideration;
• transfers the spouse joined in or consented to in writing (consenting to split gifts for gift-tax purposes doesn't count as consent);
• life insurance proceeds above the policy's cash value, and policies a court ordered the decedent to maintain;
• community property;
• property in a qualifying special needs trust;
• property in the federal gross estate only because of a general power of appointment;
• protected homestead, if the spouse validly waived homestead rights and receives no interest in it.

How the homestead and other property are valued

Under §732.2055:

• Protected homestead counts at full fair market value if the spouse receives it outright, and at one-half of fair market value if the spouse receives a life estate or the one-half tenant-in-common interest under §732.401(2).
• Values are reduced by mortgages and liens for which the decedent was liable.
• Other property is valued at fair market value on the date of death, net of claims and liens.

The elective share is in addition to the spouse's homestead rights, exempt property and family allowance (§732.2105). If the homestead wasn't validly devised and the decedent left descendants, the spouse takes a life estate, or can elect within 6 months after death to take a one-half interest as a tenant in common (§732.401). For who can inherit a Florida homestead and when a will can't control it, see Florida Homestead Devise Rules.

What counts toward the 30% first

The spouse doesn't simply add 30% to everything else. Under §732.2075, these are applied first:

• property passing to the spouse under the will, trusts or by other means;
• retirement amounts payable to the spouse;
• life insurance on the decedent payable to the spouse;
• interests in a qualifying special needs trust;
• property the spouse disclaims.

Any shortfall is paid by the other recipients in order:

1. Class 1 is the probate estate and revocable trusts.
2. Class 2 is recipients of the other included property, such as POD and joint accounts and insurance cash value, plus certain retained-interest and retirement property the decedent could designate.
3. Class 3 is everyone else.

Interests that qualified for a charitable deduction aren't in any of the classes.

Trusts for the spouse count at a discount unless they meet the statute. An elective share trust is one where the spouse:

• is entitled for life to all the income (at least annually) or to use the property;
• can require the trustee to make it productive;
• is the only person who can receive distributions during the spouse's life (§732.2025).

Under §732.2095:

• it counts at 100% if the spouse also has a qualifying power to invade principal and a qualifying general power of appointment;
• it counts at 80% with the invasion power only;
• it counts at 50% otherwise.

A life interest that isn't in trust also counts at 50%. This is one reason estate plans for married Floridians often use trusts written to these rules.

Deadline and how the election works

• Deadline: file the election by the earlier of 6 months after the notice of administration is served on the spouse (or the spouse's attorney in fact or guardian), or 2 years after the date of death (§732.2135(1)).
• Extensions: a petition can be filed within that period, or within 40 days after certain proceedings that affect the amount end, whichever is later, but never more than 2 years after death. The court may extend for good cause, and a timely petition tolls the deadline (§732.2135(2), (4)).
• Withdrawal: an election may be withdrawn within 8 months after death and before the court orders contribution (§732.2135(3)).
• Court order: the court determines the amount and how much each recipient contributes; the personal representative collects contributions. An unsatisfied share starts bearing interest 2 years after death, and contributions bear interest starting 90 days after the order of contribution (§732.2145).
• Fees: where there's a dispute over entitlement, the amount, what's included or how it's satisfied, the court may award costs, including attorney's fees, and decide who pays (§732.2151).
• Third parties: banks, insurers and other payors aren't liable for paying the beneficiary named in a governing instrument in good-faith reliance on it (§732.2115), so the claim runs through the court's order of contribution.

Waiving the elective share: prenups and postnups

Florida lets a spouse waive the elective share, wholly or partly, before or after marriage (§732.702):

• Form: a written contract, agreement or waiver, signed in the presence of two subscribing witnesses (for Florida residents).
• Disclosure: each spouse must make a fair disclosure of their estate if the waiver is signed after marriage. No disclosure is required for an agreement signed before marriage.
• "All rights" language: unless it says otherwise, a waiver of "all rights" in the other spouse's property or estate, or a complete property settlement made in anticipation of separation or divorce, waives the elective share and other spousal rights such as homestead, exempt property and family allowance.

Because the formalities are specific, couples with significant assets often address the elective share expressly in a prenuptial or postnuptial agreement. If a waiver is disputed, see Can a Prenup Be Challenged?

Questions to ask an attorney

• Was the decedent domiciled in Florida at death?
• What's in the elective estate, including trusts, joint accounts, beneficiary designations and gifts in the last year?
• What does the spouse already receive, and how is any trust for the spouse credited under §732.2095?
• Is there a prenup, postnup or other waiver, and does it meet §732.702?
• When was the notice of administration served, and what's the deadline?
• How do the homestead rules interact with the share?

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Related

• Florida Homestead Devise Rules: Who Can Inherit Your Home
• What Is a Revocable Trust?
• What Is Probate?
• What Is a Beneficiary Designation?
• What Is Ancillary Probate?
• How Prenups Work for High-Net-Worth Couples

FAQ

What is the elective share in Florida?
It's the right of a surviving spouse of someone who died domiciled in Florida to take 30% of the decedent's elective estate instead of relying only on what the will, trusts and beneficiary designations provide (Fla. Stat. §§732.201, 732.2065).

Does the elective share include a revocable trust?
Yes. Property the decedent could revoke at death, such as assets in a revocable living trust, is part of the elective estate (§732.2035(5)), and revocable trusts are in the first class that contributes to the share (§732.2075).

Is life insurance part of the elective estate?
Only the net cash surrender value immediately before death of policies on the decedent's life. Death benefit above that cash value is excluded (§§732.2035(7), 732.2045).

Are retirement accounts included?
Yes. Amounts payable to anyone because they survived the decedent under pension, retirement or deferred-compensation plans count, except Social Security and Railroad Retirement benefits (§732.2035(8)).

How long does a spouse have to elect?
The election must be filed by the earlier of 6 months after the spouse is served with the notice of administration or 2 years after death. A court can extend the time for good cause on a timely petition, but not beyond 2 years after death (§732.2135).

Is the elective share in addition to the homestead?
Yes. The elective share is in addition to homestead, exempt property and family allowances (§732.2105). The value of the spouse's homestead interest is counted in the elective estate (§732.2055).

Can a prenup waive the elective share?
Yes. A written agreement signed before or after marriage in the presence of two subscribing witnesses can waive it. If signed after marriage, each spouse must first make a fair disclosure of their estate (§732.702).

Can gifts made before death reduce the elective share?
Gifts in the year before death can be pulled back in, apart from qualifying medical and tuition payments and the first annual-exclusion amount per recipient ($19,000 in 2026). Irrevocable transfers made before the marriage are excluded (§§732.2035(9), 732.2045).

Does a divorced spouse get an elective share?
The right belongs to a surviving spouse. Florida also voids a will's provisions for a spouse after divorce or annulment unless the will says otherwise (§732.507(2)).

Sources

• Florida Statutes (2026), Ch. 732, Part II, Elective Share: §732.201, §732.2025, §732.2035, §732.2045, §732.2055, §732.2065, §732.2075, §732.2085, §732.2095, §732.2105, §732.2115, §732.2125, §732.2135, §732.2145, §732.2151, §732.2155 (Florida Senate; fetched Nov. 4, 2026)
• Florida Statutes (2026): §732.401, §732.4015, §732.507, §732.702 (Florida Senate; fetched Nov. 4, 2026)
• 26 U.S.C. §2503 (Cornell LII; fetched Nov. 2, 2026)
• IRS, Rev. Proc. 2025-32 (2026 annual exclusion; fetched Nov. 2, 2026)

*This article is general information, not legal or tax advice. Elective share outcomes depend on the facts, the documents and court rulings; talk with a Florida estate planning or probate attorney about a specific estate.*