Understanding a Spouse’s Statutory Right to Inherit Under the Florida Probate Code
Key Takeaways: The Florida elective share may give a surviving spouse of a Florida-domiciled decedent the right to claim 30 percent of the decedent’s elective estate under Fla. Stat. § 732.2065, meaning a spouse generally cannot be fully disinherited by a will alone. The elective estate is broader than the probate estate and can include revocable trust property, certain joint accounts, payable-on-death designations, and specified retirement or insurance interests, subject to the exclusions in Fla. Stat. § 732.2045. Valuation rules under Fla. Stat. § 732.2055 differ by asset type, and satisfaction of the share generally follows a statutory order that applies property already passing to the spouse first. The election must generally be filed within six months after service of the notice of administration or two years after death, whichever is earlier, with narrow extensions and a limited withdrawal window. These rights may be waived by a written agreement signed before two subscribing witnesses, though the scope and execution of such waivers are frequently contested. For personal representatives in Palm Beach County, the practical work often lies in identifying the full elective estate, serving timely notice, and documenting every step.
When a Palm Beach resident dies and the will leaves little or nothing to the surviving spouse, Florida law may provide a statutory safety net. Under Fla. Stat. § 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. Electing does not treat the spouse as having predeceased the decedent, although property already passing to the spouse is generally applied first toward satisfying the share rather than added on top of it. In plain terms, a spouse generally cannot be fully disinherited by a will alone, absent a valid waiver or a failure to elect in time. For personal representatives administering an estate in Palm Beach County, understanding this right early can matter for lawful notice, accurate accounting, and defensible administration.
If you are serving as a personal representative or trustee and need guidance on how a spousal election may affect the estate you are administering, the probate team at Moran Law is available to help. Call (561) 779-2029 or contact us now to discuss your responsibilities and timelines.
How the Florida Elective Share Surviving Spouse Right Works
The elective share is generally a fixed statutory percentage rather than a discretionary award. Under Fla. Stat. § 732.2065, the elective share equals 30 percent of the elective estate. That percentage does not vary based on marriage length, children from a prior relationship, or the spouse’s own wealth. What varies, often dramatically, is the size of the elective estate itself.
The elective estate is broader than the probate estate. The Florida Bar’s guidance on probate in Florida explains that the elective share is measured against an elective estate that sweeps in certain non-probate assets in addition to assets passing through administration. Revocable trust property, certain joint accounts, payable-on-death designations, and specified retirement or insurance interests may be counted, while Fla. Stat. § 732.2045 excludes categories such as certain irrevocable transfers, qualifying term life insurance, and property held in a qualifying special needs trust. Personal representatives who assume the calculation stops at the probate inventory may underestimate exposure.
The elective share generally sits alongside other spousal protections rather than replacing them. Fla. Stat. § 732.2105 provides that the elective share shall be in addition to homestead, exempt property, and allowances under part IV of the code. A surviving spouse may therefore receive homestead protections and a family allowance and still elect the statutory percentage, although homestead and certain other interests passing to the spouse may still be counted in the elective estate and applied toward satisfying the share.
Which Assets Count and How They Are Valued
Valuation rules differ by asset type, and those differences matter. Fla. Stat. § 732.2055 provides that protected homestead is generally valued at fair market value on the date of death when a fee simple interest is received, or one-half of that value when the spouse takes a life estate. Life insurance policies are generally valued at net cash surrender value immediately before death. Most other property is generally valued at fair market value on the applicable valuation date, typically the date of death, net of mortgages, liens, and security interests, with claims and administrative expenses addressed elsewhere in part II.
| Asset Type | General Valuation Approach |
|---|---|
| Protected homestead (fee simple) | Fair market value at date of death |
| Protected homestead (life estate) | One-half of fair market value at date of death |
| Life insurance policy | Net cash surrender value immediately before death |
| Most other property | Fair market value at death, net of mortgages, liens, and security interests |
Satisfaction of the share generally follows a statutory order. Under Fla. Stat. § 732.2075(1), unless the will or a referenced trust directs otherwise, property already passing to or for the benefit of the surviving spouse is generally applied first. This can include certain contingent interests, specified retirement or insurance proceeds payable to the spouse, and property that would have satisfied the share but was disclaimed. Only after those interests are exhausted may other estate assets become subject to contribution under Fla. Stat. § 732.2075(2).
💡 Pro Tip: Personal representatives should inventory non-probate transfers, including revocable trust assets and beneficiary designations, before assuming the elective estate is small. An incomplete asset picture is one of the most common sources of later contribution disputes.
Deadlines That Govern Elective Share Rights
Timing is one of the strictest features of this area of the code. Fla. Stat. § 732.2135(1) requires the election be filed on or before the earlier of six months after service of the notice of administration on the surviving spouse, or two years after the decedent’s date of death. The election may be filed by the spouse or, on the spouse’s behalf, by an attorney in fact, guardian of the property, or personal representative of the spouse, subject to any required court approval.
When Extensions and Withdrawals May Apply
Extensions exist, but they must be requested properly and are not automatic. Under Fla. Stat. § 732.2135(2), a spouse or authorized representative may petition, within the election period, for an extension, and the court may grant one for good cause; if granted, the election must be filed within the extended period, and no election is permitted more than two years after death. Section 732.2135(3) allows an election to be withdrawn at any time within eight months after death and before the court’s order of contribution. Whether good cause exists is fact-dependent, and no spouse should assume relief will be granted.
Why Timely Notice Protects the Personal Representative
Serving the notice of administration promptly may do more than satisfy a formality. Proper service generally starts the six-month clock, which can bring finality far sooner than the two-year outer limit. Personal representatives who document service carefully may be in a stronger position if the timeliness of an election is later questioned. A florida elective share surviving spouse lawyer can help confirm that notice practices align with statutory requirements.
When Elective Share Rights Have Been Waived
A spouse’s rights under this part of the code may be waived by written agreement. Fla. Stat. § 732.702(1) provides that the rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, the right to assert a claim under the Florida Uniform Disposition of Community Property Rights at Death Act (ss. 732.216-732.228), and preference in appointment as personal representative of an intestate estate, or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the waiving party in the presence of two subscribing witnesses. Prenuptial and postnuptial agreements are the most common vehicles.
Waivers are not self-executing, and their scope is frequently contested. Common issues in Palm Beach probate matters include:
- Whether the writing was signed before two subscribing witnesses as the statute requires
- Whether the waiver language reaches the elective share specifically or only certain other rights
- Whether the agreement waived rights only in dissolution rather than at death
- Whether disclosure obligations were satisfied, noting that Fla. Stat. § 732.702(2) generally requires fair disclosure for waivers signed after marriage but not for those signed before marriage
Commentary on recent elective share amendments discusses changes affecting how certain trust interests and non-probate transfers are valued and included in the elective estate, along with procedural points such as election timing and the interaction of spousal rights with premarital agreements. Whether any particular amendment applies generally depends on the applicable effective date provisions, often keyed to the date of death, and the specific facts.
Practical Considerations for Palm Beach Estates
Palm Beach County estates often involve asset structures that complicate the elective estate calculation. High-value homestead property, revocable trusts holding investment accounts, closely held business interests, and out-of-state real property all raise valuation and inclusion questions. Because the elective share is measured against a statutorily defined pool rather than the probate inventory alone, the analysis can require appraisals, account histories, and trust records.
Fiduciaries should also consider how an election interacts with the overall distribution plan. When a spouse elects, other beneficiaries and certain non-probate recipients may be required to contribute, and the order of contribution may reshape who ultimately receives what. Documenting each step, from asset identification through the proposed contribution schedule, supports good-faith administration.
💡 Pro Tip: Keep beneficiaries informed as the elective share analysis develops. Transparency about the statutory framework often reduces the likelihood that a routine election escalates into contested litigation.
The elective share generally applies only where there is a surviving spouse and a decedent domiciled in Florida at death. Estates without a will follow a separate framework entirely, and readers can learn more about Florida intestate succession laws and how heirs are determined when no valid will exists. The two systems overlap in places, particularly regarding homestead and allowances, and a spouse may elect against an intestate estate as well, but the analysis differs.
Frequently Asked Questions
1. Can a will completely disinherit a spouse in Florida?
Generally, no. Fla. Stat. § 732.201 grants a surviving spouse of a Florida-domiciled decedent the right to elect a share of the elective estate regardless of the will’s terms, subject to a valid waiver or a failure to elect within the statutory period.
2. How much is the Florida elective share surviving spouse entitled to claim?
Fla. Stat. § 732.2065 sets the amount at 30 percent of the elective estate. Because the elective estate may include certain non-probate assets, the dollar value can substantially exceed 30 percent of the probate estate alone, though property already passing to the spouse is generally applied toward satisfying the share.
3. What happens if the deadline to elect passes?
The right to elect is generally lost once the applicable period under Fla. Stat. § 732.2135(1) expires. A court may extend the time for good cause under subsection (2) if a timely petition is filed, but an election is not permitted more than two years after the date of death, and such relief is discretionary rather than assured.
4. Does the elective share replace homestead rights?
No. Fla. Stat. § 732.2105 states the elective share is in addition to homestead, exempt property, and allowances. How those interests are valued and applied toward the share depends on the facts and the terms of the governing instruments.
5. Can a spouse change their mind after filing an election?
Under Fla. Stat. § 732.2135(3), an election may be withdrawn within eight months after the decedent’s death and before the court enters an order of contribution. After that point, withdrawal is generally unavailable.
Protecting the Estate While Honoring Spousal Rights
The Florida elective share may give a surviving spouse a statutory claim to 30 percent of the elective estate under Fla. Stat. § 732.2065, in addition to homestead, exempt property, and allowances under Fla. Stat. § 732.2105. Deadlines under Fla. Stat. § 732.2135 are short, waivers under Fla. Stat. § 732.702 must generally meet formal execution requirements, and valuation rules under Fla. Stat. § 732.2055 vary by asset type. For a personal representative in Palm Beach County, the practical challenge is often identifying the full elective estate, serving proper notice, and documenting each decision. Outcomes depend heavily on the specific facts of each estate.
If you are administering an estate where a spousal election may be filed, the attorneys at Moran Law’s probate practice can help you evaluate the elective estate and meet your statutory obligations. Call (561) 779-2029 or schedule a consultation to get started.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.
