Florida’s Elective Share: What is It and Why Does it Matter?

Florida makes it difficult for people to cut their spouse out of a will. Instead, Florida’s “elective share” laws give surviving spouses a right to elect to take a percentage of their spouse’s elective estate. This law can matter for many affluent people, especially those who marry later in life and hope to leave their estate to children from a previous marriage.

Without a thoughtful plan, you might not leave assets to loved ones like you had hoped. Contact our law firm. You negotiate a waiver of the elective share in a valid prenuptial or postnuptial agreement. Nobody should try to negotiate on their own. Instead, hire a legal team to research the law and draft an airtight agreement. The legal team at Hamilton O’Neill can explain more about the process in a consultation.

A Closer Look at the Elective Share

Generally, a person can choose to leave estate assets to whomever they want. But Florida’s elective share laws are an exception and give the surviving spouse certain rights.

For example, Florida Statute § 732.201 gives surviving spouses a right to an elective share if their spouse is domiciled in Florida at the time of their death. § 732.2065 then identifies that the elective share is 30% of the elective estate.

The elective estate includes all assets owned at death by the deceased, as well as certain assets transferred outside of probate. Total them all up and multiply by 0.30. That’s what a spouse is entitled to under Florida law.

Of course, the elective share can disrupt a carefully laid estate plan. Suppose a man has children from a previous marriage and gets remarried at 60. He does not update his estate plan, instead leaving everything to his children. However, at death, his surviving spouse will have the right to 30% of the estate, regardless of what is written in his will. This is how the elective share works. That would mean fewer assets going to children or other beneficiaries.

Fortunately, we can help people who are getting married by negotiating a waiver of the elective share. In a prenuptial or postnuptial agreement, your spouse can agree to take a smaller percentage (less than 30%) or waive their right to the elective share entirely.

Contact Hamilton O’Neill to speak with one of our attorneys. Many people assume that prenuptial agreements only deal with what happens between spouses upon divorce. But a well-drafted agreement should also contemplate a spouse’s rights when the other spouse dies.

Talk with a Lawyer

Blended families raise many complicated legal issues. The elective share is only one of the more prominent that our clients are worried about when they get married later in life. Contact our firm to speak with a Miami prenuptial and postnuptial agreement lawyer.

We can also help if your fiancé is insisting on a prenuptial agreement and you want to better understand your rights. No one should go into marriage “blind,” especially if you are entering a second marriage or are over 50. Our consultations are wholly private.

Source:

flsenate.gov/Laws/Statutes/2025/732.2065