As the late, great Biggie Smalls once said: Money, more or less, causes problems. In the state of Florida, when a deceased person leaves a will, they usually leave a portion of their estate to their spouse. This Spousal Elective Share isn’t necessary so long as the minimum amount by statute was left to the surviving spouse or if the spouse signed a waiver relinquishing their rights to the Elective Share.
Your Legal Entitlements
- When a deceased spouse leaves too little or nothing to their surviving spouse, Florida Statute 732.201 allows for the surviving spouse to elect to take an Elective Share of the deceased spouse’s estate.
- Florida Statute 732.2065 provides that the Elective Share is an amount up to 30% of the elective estate.
- Florida Statute 732.2035 provides a list of property that is part of the elective estate. This includes the decedent’s probate estate, certain types of trusts, decedent’s protected homestead property, decedent’s interest in the net cash surrender value of life insurance policies, etc.
- Florida Statute 732.2045 lists property that is always excluded from the Elective Share.
As straightforward as it may seem, there are a number of factors that can seriously complicate the surviving spouse’s ability to receive their Elective Share.
The Bumpy Road Ahead
- If the decedent had a large amount of assets, this could delay the probate administration as various assets would need to be uncovered or discovered.
- If the personal representative of the estate makes it difficult to ascertain the assets, this could cause delay.
- If the personal representative and the surviving spouse are unable to agree on the value of certain assets, this could cause the judge to intervene, or cause the case to be referred to mediation.
- If descendants contest the Elective Share election of the surviving spouse, this could cause the judge to intervene as well, also causing delay in the elective estate administration.
With the sheer amount of seemingly-innocuous situations in which one may find themselves at any given step in the process, it’s important to have a knowledgeable and compassionate attorney at your side.