How Florida’s 30% Elective Share Protects Tampa Bay Spouses
A surviving spouse of a person who died domiciled in Florida has a statutory right to claim an elective share of the deceased spouse’s estate, no matter what the will says. That share is commonly understood to be a portion of the elective estate, a figure established under Florida law according to Fla. Stat. §732.201. The elective estate reaches well beyond probate assets, pulling in certain trusts, retirement accounts, and other nonprobate property.
TL;DR:
- The elective share includes not only probate assets but also trusts, retirement accounts, and certain life insurance policies, often amounting to more than 30% of the estate.
- Filing the election must occur within six months of notice or two years of death, with potential for court extensions, or the right may be lost entirely.
- The 30% figure is based on the entire elective estate, which can significantly exceed the probate assets, and disputes over valuation are common.
- Retirement accounts and trust interests may be subject to contribution orders even if they are designated as nonprobate assets, reducing asset protection.
- Proper estate planning tools, including prenuptial agreements and coordinated document drafting, are necessary to modify the default elective share rights.
What Is the Elective Share in Florida?
Florida law does not let one spouse quietly disinherit the other. Under §732.201, a surviving spouse who was married to the decedent at the time of death, and whose spouse was domiciled in Florida, can elect to take a share of the estate regardless of what a will, trust, or beneficiary form provides.
The rule exists for a simple reason: without it, a spouse could sign beneficiary forms years before death, route assets to children from a prior marriage, or otherwise leave a current spouse with nothing. The elective share acts as a floor.
A few qualifying details matter:
- The couple must have been legally married, not just in a long-term relationship, when death occurred.
- The decedent must have been domiciled in Florida, meaning Florida was their permanent legal home.
- A pending divorce does not eliminate the right. Only a finalized divorce decree cuts it off.
- Legal separation, without a completed divorce, generally leaves elective-share rights intact.
If you moved to Florida from another state, it’s worth reviewing your estate documents. Our overview on updating your will after relocating to Florida walks through why domicile changes can quietly shift how these protections apply.
What Counts in the Elective Estate
This is where most people get surprised. The elective estate under §732.2035 is not just what passes through probate. It’s a much broader statutory construct designed to prevent a spouse from being cut out through clever asset titling.
Property that typically enters the elective estate includes:
- Probate assets held solely in the decedent’s name
- Certain trust distributions and trust interests the decedent controlled
- The cash-surrender value of life insurance policies owned by the decedent
- Survivorship interests in retirement accounts and pension plans
- Some transfers made shortly before death, if made to avoid the elective share
Pro Tip: The elective share is not 30% of what’s in probate alone. It’s 30% of a much wider elective estate that can include life insurance and trust assets you might never have expected to see counted.
Exclusions and special rules complicate the picture further. Required distributions from certain trusts, some retirement designations, and homestead property each get separate statutory treatment. Getting the classification wrong, either overstating or understating what belongs in the elective estate, can swing a negotiation by tens of thousands of dollars. Our guide to assets exempt from probate in Florida covers related classification questions that often come up in the same conversation.
Who Can File the Election and What Deadlines Apply
Filing an elective share claim is not automatic, and the clock starts running the moment the estate opens.
- Who can elect: the surviving spouse personally, or, if the spouse is incapacitated, an attorney-in-fact or a court-appointed guardian acting on the spouse’s behalf.
- The deadline: the election must be filed by the earlier of six months after service of the notice of administration, or two years after the date of death, per §732.2135.
- Extensions: a spouse or representative can petition the probate court for additional time for good cause, which tolls the clock while evidence is gathered.
- Withdrawal: an election can be withdrawn within eight months of the decedent’s death, giving families some room to reconsider once more information about the estate surfaces.
Failing to timely file the election may result in loss of the right to claim under the statute. That is one of the most common and most avoidable mistakes we see in probate cases across Pinellas County.
How the 30% Share Gets Calculated
The math sounds simple: the elective share equals 30% of the elective estate, as set out in §732.2065. In practice, valuation is where most disputes actually happen.
Florida law sets specific timing and valuation rules for putting a number on the elective estate, generally keyed to the date of death, under the valuation provisions found alongside §732.2035. Common flashpoints include:
- Disagreements over the cash-surrender value of life insurance policies
- Disputes over what a decedent’s interest in a trust was actually worth
- Transfers made in the year or two before death that one side argues were designed to shrink the elective estate
If you suspect you’re entitled to a claim, request account statements, trust instruments, and policy documents as early as possible. Values can shift, and records get harder to obtain the longer you wait.
How the Elective Share Gets Paid
Once the 30% figure is set, the estate has to actually pay it, and Florida statute lays out a specific order for where that money comes from.
Contribution generally follows a set sequence, drawing first from probate assets passing outside the will’s specific plan, then reaching into other property that entered the elective estate. Beneficiaries who directly received assets, including payable-on-death accounts and certain trust distributions, can be ordered to contribute their share back.
- Direct recipients of nonprobate assets may face a contribution order even if they never touched the probate estate.
- Beneficiaries named on retirement accounts or POD bank accounts are not automatically protected from contribution.
- This creates real negotiating leverage. A spouse with a strong elective-share claim can often reach a faster settlement, since beneficiaries generally prefer avoiding a contested contribution order to actual litigation.
Understanding this order of contribution before negotiations start puts a surviving spouse in a far stronger position.
Planning Around the Elective Share
Couples who want a different outcome than the statutory default have lawful ways to get there, provided they follow Florida’s disclosure rules closely.
A spouse can waive elective-share rights through a prenuptial or postnuptial agreement, but the waiver only holds up if it meets the strict tests under §732.702, generally full financial disclosure or a knowing waiver of that disclosure, and fair representation for both parties at the time of signing. A waiver signed without proper disclosure is one of the most common grounds for a later will contest.
Smart planning usually combines several tools:
- A properly disclosed prenuptial or postnuptial agreement
- Clear coordination between homestead elections, beneficiary designations, and trust language
- Funding mechanisms that actually satisfy a spouse’s expected share, rather than leaving it to guesswork after death
Pro Tip: Handle your prenup, your trust, and your beneficiary forms in one coordinated sitting rather than piecemeal over the years. Documents drafted separately, sometimes a decade apart, are where contradictions and disputes usually start.
Practical Steps If You Think You’re Entitled to a Claim
Whether you’re a surviving spouse or an executor bracing for a claim, the early steps look similar.
- Gather documentation first. Pull the death certificate, the will, any trust instruments, beneficiary designation forms, and recent account statements.
- File the election with the probate court handling the estate, well before the six-month or two-year deadline arrives.
- Request an extension in writing if you need more time to value complex assets, and do it before the original deadline expires, not after.
- Bring in counsel early when trusts, retirement accounts, or disputed valuations are involved. A first consultation typically covers what property likely belongs in the elective estate and what the claim might realistically be worth.
- Expect a multi-month timeline. Straightforward claims can resolve in a matter of months; contested valuations or contribution disputes often stretch well beyond a year.
If a dispute looks likely, our probate litigation team handles contested elective-share matters throughout Pinellas Park and the greater Tampa Bay area.
Trusts and Beneficiary Designations Don’t Automatically Escape the Elective Share
A common misconception is that naming a trust or a specific beneficiary on an account puts that asset out of a surviving spouse’s reach. That’s often wrong.
Because §732.2035 pulls many trust interests and retirement survivorship rights into the elective estate, simply retitling assets before death rarely achieves full protection. A revocable trust that the decedent controlled during life, for instance, generally does not shield its assets from an elective-share claim the way people assume it will.
This creates real friction for blended families. A parent who names children from a first marriage as trust beneficiaries, intending to keep certain assets separate from a second spouse, may find that intention partially undone by a valid elective-share election. The trust still functions as written for most purposes, but a contribution order can require the trust, or its beneficiaries, to pay back a portion equal to the spouse’s statutory share.
Retirement accounts carry their own wrinkle. Federal law sometimes requires spousal consent for beneficiary changes on certain employer plans, layering federal rules on top of Florida’s elective-share statute. The two systems don’t always point in the same direction, which is exactly why beneficiary designations deserve a second look whenever a marriage, divorce, or remarriage changes the family picture.
A Simple Example of the 30% Calculation
Numbers make this easier to grasp. Say a Florida resident dies leaving a probate estate worth $400,000, a revocable trust holding $300,000, and a life insurance policy with a cash-surrender value of $100,000 at the time of death.
Under §732.2035, all three pieces typically enter the elective estate, bringing the total to $800,000.
Now suppose the will left the spouse only a $50,000 bequest, with the rest going to adult children from a prior marriage. The spouse could elect to take the $240,000 statutory share instead of the $50,000 bequest, and the estate would need to satisfy that difference through the statutory order of contribution described earlier. This is precisely the scenario the elective share was built to prevent: a spouse quietly reduced to a token inheritance while the bulk of the estate passes elsewhere.
Real cases rarely land on such round numbers. Disputed life insurance valuations, contested trust interests, and last-minute transfers can all shift the final figure, which is exactly why early documentation matters so much.
Tax Considerations Tied to an Elective Share Claim
An elective share is a state property right, not a separate taxable event created by Florida law. Florida has no state estate tax or state inheritance tax, so a surviving spouse claiming the elective share doesn’t face a Florida tax bill on the amount received.
Federal estate tax is a different matter, though it rarely touches most Florida families. The federal estate tax only applies to estates above a large exemption threshold, and property passing to a surviving spouse generally qualifies for the unlimited marital deduction, which can reduce or eliminate federal estate tax exposure on amounts the spouse receives.
Where taxes can surface is in what happens after the spouse receives the assets. Retirement accounts pulled into an elective-share settlement, for example, may carry embedded income tax liability once distributions begin, separate from any estate tax question.
Does Remarriage or Separation Change Your Right to Claim?
Marital status at the moment of death controls this analysis, and the details matter more than people expect.
If the decedent remarried before death, the new spouse holds the elective-share right, not a prior spouse from an earlier marriage that ended in divorce. A finalized divorce decree cuts off elective-share rights entirely, even if the couple had been married for decades beforehand.
Separation is different from divorce, and Florida treats it that way. A couple who is separated but never completed a divorce generally remains legally married, which means the elective-share right typically stays intact for the separated spouse. Only a completed divorce judgment, not an informal separation or even a pending divorce petition filed but not finalized before death, eliminates the right.
This distinction catches families off guard fairly often. Anyone navigating a separation with significant assets at stake should treat the elective share as a live issue until a divorce is actually finalized, not merely filed.
Elective-share disputes rarely arrive as clean textbook cases. Attorneys with experience as former prosecutors and insurance defense counsel approach these claims by building a record early and anticipating valuation arguments before they surface. In the Tampa Bay area, blended families and homestead complications often collide in the same estate. Clients can expect a consultation to provide a clear read on what belongs in the elective estate, a realistic deadline calendar, and a straight answer on whether the claim is worth pursuing.
Get Help With Your Elective Share Claim in Pinellas County
Missing the six-month or two-year filing window can end a valid claim before it starts, so timing is not something to sit on. Oldham Law PLLC helps surviving spouses and estate representatives throughout Pinellas Park, St. Petersburg, and the Tampa Bay area file elections, negotiate contribution orders, draft enforceable spousal waivers, and coordinate estate plans that avoid these disputes altogether.
Unlike a generic online calculator or a national legal document service, our attorneys review your actual trust instruments, beneficiary forms, and account statements before telling you what your claim is likely worth. That local, document-level review is what catches the classification issues, like a retirement account or trust interest that shouldn’t have been left out, before they become expensive mistakes. Our probate practice handles elective-share elections from the initial filing through settlement or litigation. If you’ve recently lost a spouse or you’re an executor facing a claim, contact our office to schedule a review of your documents before any deadline passes.
Sources
- Chapter 732 Section 201 – 2026 Florida Statutes – The Florida Senate
- # Fla. Stat. 732.2135 – Time of election; extensions; withdrawal
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
FAQ
Does a wife automatically get half of everything in Florida?
No.
What assets are exempt from Florida probate?
Certain property, including some homestead interests, qualified retirement accounts with named beneficiaries, and jointly titled assets with survivorship rights, can pass outside probate, though many of these same assets may still count toward the elective estate.
What happens if I miss the elective share deadline?
The right to claim generally expires once both the six-month and two-year deadlines under §732.2135 have passed without a filed election or an approved extension.
