How Florida’s Elective Share Laws Can Impact Your Estate Plan

How Florida’s Elective Share Laws Can Impact Your Estate Plan

Many Florida families assume a will or trust gives them complete control over who inherits property. It does not always work that way. In Florida, a surviving spouse can claim an elective share equal to 30% of the elective estate, which can include more than the assets passing through probate. The Law Offices of Petrovich & Kutub helps Florida families review estate plans with those rules in mind so a plan works the way it was intended for their spouses, children, and other intended beneficiaries over time.

If you are married, speak with our estate planning attorney now so your plan can be reviewed before a spouse’s claim disrupts what you intend to leave behind.

What the Elective Share Actually Covers

Florida’s elective share is not limited to the property titled in a will. Under section 732.2035 of the Florida Statutes, the elective estate may include probate assets, certain jointly held property, some revocable transfers, protected homestead interests, and parts of retirement or payable-on-death arrangements. It can also include assets a decedent transferred while still retaining certain rights or control during life, which is one reason elective share calculations can become broader than families first expect. That means a person cannot assume a trust or beneficiary form will automatically place assets outside a surviving spouse’s reach.

This is why our estate planning lawyer looks at the full structure of a plan, not only the will. A document may appear balanced on its face, yet still leave room for a later claim that changes distributions, delays administration, or forces beneficiaries into a dispute.

Why This Matters for Blended Families and Second Marriages

Elective share issues often become more visible in second marriages, blended families, and estates where one spouse wants to leave a larger share to children from a prior relationship. A parent may believe a trust fully protects those wishes, but Florida law still gives the surviving spouse important rights unless there is a valid waiver or another lawful structure in place. The result can be a plan that creates stress instead of clarity.

For many families, the better approach is to address the spouse’s rights directly during planning rather than leave the issue for probate. Our firm’s About page reflects its focus on estate planning, probate, guardianship, and elder law for Florida families who need practical guidance.

Waivers Can Matter, but They Must Be Done Properly

Florida law allows a spouse to waive elective share rights before or after marriage if the waiver satisfies the statutory requirements. Under section 732.702, the waiver must be in writing and signed with the required formalities, and post-marriage waivers require fair disclosure of each spouse’s estate. A rushed or incomplete agreement can create fresh problems instead of preventing them.

That is one reason families often want our probate attorney involved before they rely on a prenup, postnup, or estate planning update. The goal is not only to sign documents, but to make sure the documents actually support the broader plan.

Probate Timelines Can Raise the Stakes

Timing matters once a spouse dies. Under section 732.2135, the election generally must be filed by the earlier of six months after service of the notice of administration or two years after death, unless an extension applies. That deadline can shape how quickly a personal representative, surviving spouse, and beneficiaries need to evaluate the estate plan.

If probate is already open, our probate lawyer can assess whether the elective share may affect distributions, settlement strategy, or the handling of assets passing both inside and outside the estate. You can also review the firm’s practice areas to see how estate planning and probate issues often overlap.

Planning With Florida Law in Mind

A sound estate plan should account for marriage, children, business interests, retirement assets, homestead property, and the chance that family relationships may change over time. Elective share rules are one reason cookie-cutter documents often fall short. Estate planning works better when the documents match the family’s actual goals and the legal rights that may apply later.

Protect the Plan You Mean to Leave

Florida elective share laws can affect wills, trusts, beneficiary designations, and probate administration in ways many families do not expect. Reviewing those rules now can help protect your intentions and reduce conflict later. PK Legal Group can help you revise a plan that fits Florida law and your priorities. Contact us today to have your estate plan reviewed before a spouse’s claim creates avoidable probate problems.