Florida Elective Share: Protecting (or Planning Around) a Surviving Spouse

The Florida elective share is a surviving spouse’s statutory right to claim 30 percent of a deceased spouse’s “elective estate,” no matter what the deceased spouse’s will or revocable trust says. It is set out in Florida Statutes §732.2065, and it cannot be defeated simply by disinheriting a spouse on paper. For business owners in Palm Beach who have spent decades building a company, this single rule can quietly reroute a meaningful slice of the enterprise away from the children, partners, or successors they intended to receive it.

I have sat across the conference table from plenty of founders who assumed their will was the last word. It usually is—except where a surviving spouse is concerned. Understanding how the elective share is calculated, what it reaches, and how it can be honored or lawfully planned around is the difference between a clean succession and a probate fight that stalls the business for years.

What Is the Elective Share in Florida?

Florida is not a community property state. Instead of giving a surviving spouse an automatic ownership interest in marital property, Florida gives the spouse an election: the right to take 30 percent of the elective estate in place of (or in addition to, depending on the will) whatever the decedent left them. The spouse chooses. A surviving spouse who is happy with the will can do nothing and let the estate pass as written. A spouse who feels shortchanged can “elect against the will” and force the 30 percent.

The policy behind it is old and simple. Florida does not want a spouse of forty years left destitute because the other spouse signed a will in anger, under a new relationship’s influence, or without thinking it through. The elective share is a floor. It is also, for the unprepared estate planner, a trap.

The Elective Estate Is Much Bigger Than the Probate Estate

Here is the part that surprises most people. The 30 percent is not calculated only on assets passing through probate under the will. The “elective estate” defined in §732.2035 is deliberately broad and is designed to capture the kinds of non-probate transfers people use to avoid probate. Among other things, the elective estate reaches:

• Property passing under the will and by intestacy;
• The decedent’s revocable (living) trust assets;
• Pay-on-death and transfer-on-death accounts, and joint accounts with right of survivorship;
• The net cash surrender value of life insurance on the decedent’s life;
• The decedent’s interest in retirement and pension accounts;
• Certain property transferred within one year of death;
• Property over which the decedent held a general power of appointment.

In other words, the funded revocable trust that you set up specifically to keep your business out of probate is squarely inside the elective estate. So is the brokerage account you re-titled “TOD” to the kids. So is a big chunk of the life insurance. Trying to “starve” the probate estate to shrink the spouse’s share generally does not work, because the statute claws those transfers back into the calculation.

Why the Elective Share Hits Business Owners Hardest

For a salaried professional with a house and a 401(k), satisfying a 30 percent claim is arithmetic. For a business owner, it can be a crisis of liquidity and control.

Say a Palm Beach manufacturer is worth $8 million, and most of that value lives in operating equipment, receivables, and goodwill—not cash. If the spouse elects, the estate owes roughly 30 percent of the elective estate. There may not be $2 million sitting in a bank to pay it. The personal representative could be forced to sell or encumber the business, or hand the surviving spouse an equity stake in a company they have no role in running, sitting beside the children or partners who do. That is exactly the kind of fractured ownership that kills second-generation businesses.

This is why succession-minded owners cannot treat the elective share as an afterthought. It belongs in the plan from the first meeting, alongside the buy-sell agreement and the funding strategy. If you want a broader view of how these pieces fit together, our overview of Florida wills and estate documents is a good starting point, and the firm’s handles exactly these business-succession scenarios.

How the Elective Share Is Satisfied

When a spouse elects, the 30 percent is not pulled randomly from whichever assets are most inconvenient. Florida’s statutes establish an order of contribution. Property that already passes to the surviving spouse is counted first toward satisfying the share. After that, the burden is apportioned among the recipients of the elective estate—the trust beneficiaries, the POD account holders, and so on—in proportions the statute defines.

Crucially, Florida lets a decedent’s plan satisfy the elective share with an elective share trust rather than an outright transfer. Under §732.2025 and related provisions, property placed in a qualifying trust for the spouse—where the spouse receives the income and certain rights for life—can count toward the 30 percent at full or partial value depending on how the trust is structured. For a business owner, this is the key lever: you can provide for your spouse generously and keep the business out of their direct hands by funneling the spousal share into a properly drafted trust that pays them but does not give them a vote in the boardroom.

Planning Around the Elective Share, Lawfully

“Planning around” does not mean cheating the spouse. It means structuring the estate so the 30 percent is satisfied predictably, with liquid or non-operating assets, instead of leaving the personal representative to improvise after death. There are several legitimate tools.

1. Waiver by Prenuptial or Postnuptial Agreement

The cleanest path is a written waiver. Under §732.702, a spouse can waive the elective share—and homestead and other spousal rights—before or during the marriage. A waiver signed before marriage requires no financial disclosure to be valid. A waiver signed after marriage is valid only with fair and reasonable disclosure of the other spouse’s assets, unless that disclosure is itself waived in writing. The agreement must be in writing and signed; oral promises are worthless here.

For owners entering a second marriage with children from a first, a well-drafted prenup that waives the elective share (often in exchange for a defined bequest or life insurance) is the single most effective protection for the business.

2. Fund the Share with the Right Assets

If a waiver is not on the table, the next-best move is liquidity. Owner-funded life insurance—ideally held outside the elective estate where appropriate, or earmarked to satisfy the spousal share—lets the estate write a check instead of carving up the company. Coordinating the buy-sell agreement so surviving partners or the company can redeem the deceased owner’s interest for cash also keeps the business intact while generating funds to honor the spouse’s 30 percent.

3. Use an Elective Share Trust

As noted above, directing the spousal share into a qualifying lifetime trust lets you provide income for the surviving spouse while controlling the underlying assets and their ultimate destination. Done correctly, the trust counts toward the elective share and protects the remainder for your children or chosen successors.

4. Lifetime Gifting and Entity Planning—With Caution

Some owners try to reduce the elective estate through lifetime gifts or by shifting assets into entities. Be careful. Transfers made within one year of death are pulled back into the elective estate, and aggressive last-minute maneuvering can look like fraud on the spouse’s rights and invite litigation. Legitimate, well-documented lifetime planning done years in advance is one thing; a deathbed shuffle is another. Techniques that move real property out of an individual’s name—such as the retained life estate strategies discussed in this guide to —need to be evaluated against Florida’s clawback rules before you rely on them.

The Surviving Spouse’s Perspective: Don’t Sleep on Your Rights

The elective share also matters intensely to the spouse who is being shortchanged. The election is not automatic—you must affirmatively claim it, and the deadline is strict. Under §732.2135, the election must be filed by the earlier of six months after service of the notice of administration on the surviving spouse, or two years after the date of death. Miss the window and, absent a court-granted extension for good cause shown, the right is gone.

A surviving spouse weighing an election should also remember it interacts with other protections. Florida’s homestead rules, the family allowance under §732.403, and exempt property all exist alongside the elective share, and a spouse may be entitled to several of them at once. If you have lost a spouse and are unsure whether the plan they left treats you fairly, it is worth a conversation before the clock runs out. You can reach our office through the contact page, and our Florida probate overview walks through how administration unfolds.

Where Out-of-State Assets and Trusts Complicate Things

Many Palm Beach families are transplants with property and accounts up north. Spousal-rights regimes vary sharply by state, and a trust drafted under another state’s law may interact unexpectedly with Florida’s elective share once the owner becomes a Florida domiciliary. New York, for example, has its own elective-share framework and its own trust vehicles; planners coordinating cross-border estates often look at tools like a when a beneficiary’s circumstances require it. The lesson is not that any one tool is right, but that a plan built for one state should be re-pressure-tested the moment the family’s domicile or asset map crosses state lines.

Bringing It Together

The Florida elective share is a 30 percent guarantee that reaches far beyond the probate estate, and for a business owner it is the difference between an orderly succession and a forced sale. The good news is that it is highly plannable. A prenuptial waiver, a liquidity strategy, a properly drafted elective share trust, or some combination of the three can honor a spouse fully while keeping the business in the hands you intend. The bad news is that none of it happens by accident. If your plan has not been reviewed against §732.2065 with your company in mind, it is overdue.

This article is general information, not legal advice. Florida’s elective share statutes are technical and fact-specific; consult a Florida estate planning attorney about your situation.

Frequently Asked Questions

How much is the elective share in Florida?

Under Florida Statutes §732.2065, a surviving spouse is entitled to 30 percent of the decedent’s elective estate. The election is a right, not an automatic transfer—the spouse must affirmatively claim it, and it can be taken instead of, or in addition to, what the will provides.

Does the elective share include assets in a revocable living trust or POD accounts?

Yes. The ‘elective estate’ under §732.2035 is much broader than the probate estate. It reaches revocable trust assets, pay-on-death and transfer-on-death accounts, joint survivorship accounts, the cash value of life insurance, retirement accounts, and certain transfers made within one year of death. You generally cannot defeat the elective share by avoiding probate.

Can a spouse waive the Florida elective share?

Yes, under §732.702. A waiver can be signed before or during the marriage and must be in writing. A waiver signed before marriage requires no financial disclosure to be valid; a waiver signed after marriage requires fair and reasonable disclosure of assets unless that disclosure is waived in writing.

What is the deadline to file an elective share in Florida?

Under §732.2135, the election must be filed by the earlier of six months after the notice of administration is served on the surviving spouse, or two years after the date of death. A court may extend the deadline for good cause shown if a petition is filed within the applicable period.

How can a business owner satisfy the elective share without selling the company?

Common strategies include a prenuptial or postnuptial waiver, funding the spousal share with life insurance or a buy-sell redemption to create liquidity, and directing the spouse’s share into a qualifying elective share trust that pays the spouse income for life while keeping control of the business assets directed to chosen successors.