Florida Elective Share Statute: What a Surviving Spouse Can Claim

A Florida spouse who discovers they were cut out of the will — or left far less than expected — has a legal remedy that overrides the will entirely. It does not matter what the will says, who drafted it, or how long ago it was signed. Florida law guarantees a surviving spouse a minimum share of the total estate, and claiming it is a matter of filing in the right court before a strict deadline.

That remedy is the elective share, and understanding how it works — especially how broadly it defines the estate — is essential before any surviving spouse decides whether or not to accept what the will offers.

What Is the Florida Elective Share?

The elective share is defined under Florida Statute 732.201. It gives a surviving spouse the right to claim 30% of the decedent's "augmented elective estate." This is a floor, not a negotiating position. The will cannot reduce it below 30%, and it applies regardless of what the will says or does not say about the surviving spouse.

The election is a choice. A surviving spouse can either accept what the will provides, or elect to take the statutory share instead. If the will already leaves the surviving spouse more than 30% of the augmented estate, electing serves no purpose — you would simply be accepting the will as written. But when the will leaves a spouse significantly less, or excludes them entirely, the elective share provides a legal backstop.

The elective share applies whether the marriage was long or short, and whether the relationship was close or estranged. The only way to waive it is through a valid written agreement — more on that below.

What Is the Augmented Elective Estate?

This is where the elective share often surprises people. The 30% is not calculated against just the probate estate — the assets that pass through the will. Florida's augmented estate calculation sweeps in non-probate assets as well.

The augmented elective estate includes:

• All probate assets (assets in the decedent's name alone, distributed through the will)
• Life insurance proceeds payable to a named beneficiary (other than the estate itself)
• Retirement accounts with designated beneficiaries — 401(k)s, IRAs, pensions
• Assets in revocable living trusts
• Jointly held property (bank accounts, real estate held with right of survivorship)
• Assets transferred within one year of death that were structured to avoid the surviving spouse's share

The practical effect is that a decedent cannot simply move everything into beneficiary designations and joint accounts to deprive a spouse of the elective share. The statute anticipates these structures and counts them anyway. The augmented estate can therefore be far larger than the probate estate, which means 30% of it can be substantial.

When to Elect

The deadline for filing the elective share is governed by Florida Statute 732.2135. A surviving spouse must file the election within the earlier of:

• 6 months after the date the personal representative served the surviving spouse with a formal Notice of Administration, or
• 2 years after the decedent's date of death

Whichever deadline comes first is the controlling one. If the personal representative served Notice of Administration on the surviving spouse shortly after the estate was opened, the 6-month window from that date may expire well before the 2-year mark.

Missing this deadline is not a procedural technicality you can ask a court to excuse. Missing it means the right to elect is permanently waived. There is no petition for late filing, no equitable exception for a spouse who was unaware of the deadline. The right is simply gone.

This is why surviving spouses in any situation where the will is unexpected or disappointing should consult a Florida probate attorney immediately — not after things settle down, not in a few months. The clock may already be running.

If you are navigating a Florida estate and need to understand the full timeline of decisions facing a surviving spouse, the Florida Estate Settlement Guide covers the elective share alongside every other deadline in the process.

How to File the Elective Share Election

The election is filed by the surviving spouse's attorney in the probate court proceeding — the same Circuit Court where the estate is being administered. It is a formal pleading, and it initiates what is effectively an adversarial process within the probate case.

Once the election is filed, the personal representative is required to respond. The court must then determine the composition and value of the augmented elective estate — which often involves accounting for retirement accounts, life insurance, trust assets, and transfers made in the year before death. This valuation process can be contested if the parties disagree about what should be included or how assets should be valued.

After the augmented estate is valued, the court calculates 30%. The surviving spouse's existing entitlements under the will and beneficiary designations are credited against that figure. If what the spouse is already receiving exceeds 30%, no further payment is owed. If it falls short, the estate must make up the difference.

The Elective Share and Prenuptial Agreements

A valid prenuptial agreement can waive the elective share, but the requirements for a valid waiver in Florida are specific. The agreement must be in writing and signed by both parties. The spouse waiving the right must have had access to the other party's financial disclosure — a general sense of wealth is not enough.

Florida courts have invalidated prenuptial agreement waivers where one party withheld significant financial information, where the agreement was signed under duress or without adequate time to review, or where the waiving spouse did not have independent counsel. If a prenuptial agreement exists, its validity should be reviewed by a Florida family law attorney before assuming the elective share is waived.

An agreement made during the marriage — a postnuptial agreement — can also waive the elective share under Florida law, subject to similar requirements.

Homestead and the Elective Share

Florida's homestead rules operate separately from the elective share but alongside it. Under Article X, Section 4 of the Florida Constitution, a surviving spouse already has significant protection for the family home — the decedent generally cannot leave homestead property to anyone other than the surviving spouse when a spouse is living.

The elective share operates on top of homestead protections, applied to the remaining estate and non-probate assets. A surviving spouse in a situation involving both homestead and a contested will may be dealing with two separate legal tracks simultaneously: a homestead determination and an elective share election. Both have their own deadlines and procedural requirements.

Understanding the elective share is only part of what a surviving spouse must navigate in the months after a spouse's death in Florida. From Letters of Administration to creditor windows to tax filing deadlines, the full picture is laid out in the Florida Estate Settlement Guide.

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