The Florida elective share is the surviving spouse’s statutory right to claim 30% of a deceased spouse’s “elective estate,” regardless of what the will or trust says. Codified at Florida Statutes §§ 732.201–732.2155, it overrides disinheritance and reaches far beyond the probate file—sweeping in revocable trusts, jointly held accounts, payable-on-death assets, and more. For anyone who owns a home in Florida or splits the year between Long Island and the Sunshine State, this single rule can quietly upend an estate plan drafted in New York.
I have sat across the table from too many adult children who assumed Dad’s Florida condo and brokerage account would pass cleanly under his New York will—only to learn that his second spouse had a non-waivable claim to nearly a third of everything. This article explains how the Florida elective share works, what it captures, and how dual-state families can either honor it or lawfully plan around it.
What the Florida Elective Share Is—and Why It Exists
Florida, like most states, refuses to let a married person leave a spouse with nothing. The elective share is the mechanism. When a Florida domiciliary dies, the surviving spouse may renounce whatever the decedent left them (which can be zero) and instead elect to take a flat statutory percentage of the estate.
Two numbers anchor everything:
- 30%. The elective share equals 30% of the elective estate. Florida does not scale this by length of marriage—a six-month marriage and a thirty-year marriage produce the same percentage.
- The elective estate. This is the broad, augmented pool of assets the 30% applies to. It is defined in § 732.2035 and is much larger than the probate estate.
The policy is straightforward: a spouse who shared a life should not be left destitute by a vindictive or careless instrument. The complication, for planners, is that the statute is deliberately hard to dodge.
What Counts in the “Elective Estate”
Many people—and, frankly, some out-of-state attorneys—assume that titling assets outside probate defeats a spouse’s claim. Florida closed that door. Under § 732.2035, the elective estate is “augmented” to include assets that never touch the probate court.
Assets typically pulled into the elective estate
- The probate estate—everything passing under the will or by intestacy.
- Revocable (living) trust assets—the workhorse of avoidance planning is fully counted.
- Pay-on-death and transfer-on-death accounts, plus Totten trusts and similar bank arrangements.
- Jointly held property, to the extent of the decedent’s contribution or fractional interest.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Retirement and pension benefits, with specified valuation rules.
- Certain property transferred within one year of death, and property over which the decedent retained the right to income or principal.
In short, the statute follows the value, not the title. That is why “I’ll just put the Florida house in a trust and name my kids” rarely accomplishes what clients hope when there is a surviving spouse in the picture.
Florida Homestead: A Separate, Overlapping Protection
The elective share does not operate in isolation. Florida’s constitutional homestead protection (Article X, § 4 of the Florida Constitution) and the homestead-devise restrictions in § 732.401 layer on top of it, and they frequently surprise New York families.
If a married Florida resident dies owning a homestead and is survived by a spouse, the decedent generally cannot freely devise that homestead to anyone else. By default, the surviving spouse takes a life estate, with the remainder to the decedent’s descendants. Critically, § 732.401(2) lets the surviving spouse elect instead to take an undivided one-half interest as a tenant in common. Homestead is treated separately from the elective-share calculation, which means a surviving spouse can sometimes benefit from both regimes.
For a Long Island couple who buys a Florida winter home and later establishes Florida domicile, this is decisive. The same property is handled very differently than a New York co-op or a house in Nassau County. If you are weighing how a primary residence should move between generations, our New York office’s discussion of New York home transfers and retained life estates is a useful contrast to Florida’s constitutional approach—the two states reach the family home through entirely different doors.
Who Qualifies—and the Deadlines That Trap People
Only a surviving spouse may elect. A divorced ex-spouse cannot, and an unmarried partner has no elective-share right at all under Florida law. Beyond that, timing is unforgiving.
- The election must be filed within the earlier of six months after service of the notice of administration or two years after the date of death (§ 732.2135). Miss it, and the right is generally lost.
- The election is personal but, within limits, can be made by a guardian or agent for an incapacitated spouse.
- It can be withdrawn before the deadline, but not casually after.
I cannot overstate how often grieving spouses let these clocks run while they “wait to see how things shake out.” The deadline does not wait with them.
Planning Around the Elective Share—Legitimately
Clients with blended families, prior marriages, or children from a first marriage often ask how to limit a new spouse’s claim. There are lawful tools. Concealment and last-minute asset shuffling are not among them—Florida’s augmentation rules and fraudulent-transfer doctrines are built to catch exactly that.
1. Marital agreements (the cleanest path)
A properly executed prenuptial or postnuptial agreement can waive the elective share entirely, along with homestead rights and intestate shares. Florida enforces these when there is voluntary signing and—for postnuptial agreements especially—fair and reasonable disclosure of assets. This is the most reliable method, full stop. The waiver language must be explicit; a generic “we keep our own property” clause may not be read as a homestead or elective-share waiver.
2. Lifetime gifting, done early and genuinely
Outright gifts made well outside the one-year look-back, with no retained control or income interest, fall outside the elective estate. The key words are early and genuine. Retain strings—an income right, a power to revoke—and the asset comes right back into the pool.
3. Irrevocable trusts with no retained interest
An irrevocable trust that the decedent neither controlled nor benefited from is generally outside the elective estate. This is delicate work; the difference between an effective irrevocable trust and a glorified revocable one often comes down to drafting nuance that a coordinated NY–FL legal team should handle.
4. Satisfying the share with the right assets
Even when the share applies, planning can control how it is satisfied—directing that it come from particular assets, or funding a marital trust that qualifies under § 732.2025 so the spouse is provided for without handing over the keys to a family business.
The Pretermitted Spouse: A Different Problem
Separate from the elective share is the “pretermitted spouse” rule in § 732.301. If a person marries after executing a will and dies without updating it, the new spouse may take an intestate share—as if there were no will—unless the will provided for the spouse, the omission was intentional and shown in the will, or a valid waiver exists.
This is a classic dual-state trap. Someone signs a will in New York, retires to Florida, remarries, and never revisits the document. The Florida court may then read a brand-new spouse into an estate the decedent intended to leave to children. Updating core documents after any marriage is non-negotiable; our overview of a last will and testament in New York explains why these instruments need periodic review whenever life—or your state of residence—changes.
Why Dual-State and Out-of-State Owners Need Both States Coordinated
This is the heart of the matter for our Long Island clients. The elective share follows the decedent’s domicile, not merely where property sits. A New York domiciliary who owns a Florida condo is generally governed by New York’s spousal-protection regime (New York uses a different “right of election” under EPTL 5-1.1-A, typically the greater of $50,000 or one-third of the net estate). But a person who has truly established Florida domicile—Florida driver’s license, voter registration, declaration of domicile, the bulk of the year spent in-state—invites Florida’s 30% rule and homestead regime.
The danger zone is ambiguity. Snowbirds who never formally settle the domicile question can leave their families litigating which state’s spousal rules apply—an expensive fight that good planning prevents. A plan built only around New York law, or only around Florida law, almost always has a gap when assets and time are split between the two.
- Confirm domicile deliberately—don’t let it be decided by default after death.
- Inventory which assets sit in which state and how each is titled.
- Make sure marital agreements waive rights under both states’ statutes by name.
- Coordinate the will, revocable trust, beneficiary designations, and deeds so they tell one consistent story.
For families with Florida real property, working with counsel admitted in Florida is essential; our colleagues’ Florida estate planning practice handles the homestead and elective-share mechanics on the ground, while we keep the New York side aligned.
Common Mistakes I See
- Assuming a revocable trust defeats the share. It does not—trust assets are squarely in the elective estate.
- Relying on beneficiary designations alone. POD/TOD accounts and life insurance cash value are counted, too.
- Letting an old will survive a remarriage. The pretermitted-spouse rule can rewrite your plan.
- Ignoring homestead. The Florida home is governed by constitutional rules a New York deed can’t override.
- Treating “I have a prenup” as the end of the inquiry. If it doesn’t expressly waive Florida homestead and elective-share rights, it may not.
When to Bring in an Attorney
If you own property in more than one state, are in a second marriage, have children from a prior relationship, or are unsure where you are legally domiciled, the elective share is not a do-it-yourself topic. A short planning conversation now is far cheaper than the contested administration that follows a mismatched plan. You can reach our team through our contact page, and you may also find our overviews of wills and Florida probate helpful background before we talk.
The elective share exists to protect spouses—and it is very good at its job. Whether your goal is to honor that protection or to plan thoughtfully around it within the law, the answer is the same: coordinate both states, put the right agreements in place, and revisit your documents whenever your address, your marriage, or your assets change.
Frequently Asked Questions
How much is the Florida elective share?
It is 30% of the decedent’s elective estate under Florida Statutes § 732.2065. Florida does not adjust the percentage based on how long the marriage lasted, so a short marriage and a long marriage yield the same 30% claim.
Can a revocable living trust avoid the elective share in Florida?
No. Assets in a revocable (living) trust are part of the augmented ‘elective estate’ under § 732.2035, so a surviving spouse’s 30% claim reaches them. Revocable trusts avoid probate, not the elective share.
Can a surviving spouse waive the Florida elective share?
Yes. A valid prenuptial or postnuptial agreement can waive the elective share, homestead rights, and intestate share. Florida generally enforces these when the signing was voluntary and, especially for postnuptial agreements, supported by fair and reasonable financial disclosure. The waiver should reference these rights expressly.
What is the deadline to claim the Florida elective share?
The election must generally be filed within the earlier of six months after service of the notice of administration or two years after the date of death, under § 732.2135. Missing the deadline usually forfeits the right.
Does Florida's elective share apply to a New York resident who owns a Florida condo?
Generally no—spousal-protection rights follow the decedent’s domicile, so a true New York domiciliary is governed by New York’s right of election. But someone who has actually established Florida domicile can be subject to Florida’s 30% rule and homestead protections, which is why dual-state owners should settle the domicile question deliberately.
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