Last updated June 27, 2026 · Reviewed by Neil Alan Milestone, The Florida Bar No. 309966
Florida’s elective share gives a surviving spouse the right to 30% of the elective estate(§732.2065, Florida Statutes), no matter what the will or trust says. Crucially, the “elective estate” is an augmented estate — it reaches past the will into revocable trusts, POD/TOD accounts, certain joint property, and some pre-death transfers (§732.2035). It is deliberately hard to plan around. This is general information about Florida law, not legal advice.
Why it exists
The elective share is a spousal-protection rule: it prevents one spouse from leaving the other with little or nothing by routing assets around the will. Whether or not the will mentions the spouse, the surviving spouse can elect to take the statutory 30%.
What goes into the elective estate
The probate estate
Assets that would pass under the will or by intestacy.
Non-probate assets
Revocable (living) trust property, pay-on-death / transfer-on-death accounts, certain jointly held property, and some life-insurance cash value are pulled in (§732.2035) — which is why a trust alone does not defeat the elective share.
Certain prior transfers
Some transfers the decedent made before death can be counted back into the elective estate, to prevent last-minute end-runs.
Deadlines and waiver
The deadline
The surviving spouse must elect within the earlier of six months after service of the notice of administration or two years after death (§732.2135). It is a real deadline.
Waiving it
Elective-share rights can be waived by a valid prenuptial or postnuptial agreement under §732.702 — a common, planned-for step in second marriages and blended families.
Planning around it
Because the elective estate is so broad, planning that ignores it can backfire — especially in blended families. A coordinated plan (often with a marital agreement and the right beneficiary structure) keeps everyone’s intentions intact. This is precisely the kind of issue worth a licensed Florida attorney’s review.
Blended family or second marriage? Elective-share and homestead rules can override your plan. A free checkup flags it.
Start the free role checkGeneral information about Florida law, not legal advice. The elective share is technical and fact-specific — confirm your situation with a licensed Florida attorney. EstateDraftFL is software, not a law firm.
Frequently asked questions
- What is the elective share in Florida?
- It is a surviving spouse's right to claim 30% of the deceased spouse's 'elective estate,' regardless of what the will or trust says (§732.2065, Florida Statutes). It exists so a spouse cannot be effectively disinherited.
- What counts toward the elective estate?
- More than the probate estate. The elective (or 'augmented') estate includes the probate estate plus assets like revocable trust property, pay-on-death and transfer-on-death accounts, certain jointly held property, some life insurance cash value, and certain transfers made before death (§732.2035). It is designed to be hard to plan around.
- How long does a spouse have to claim it?
- The election generally must be made within the earlier of six months after the surviving spouse is served with a notice of administration, or two years after the date of death (§732.2135). Missing the deadline can forfeit the right.
- Can the elective share be waived?
- Yes. A spouse can waive elective-share rights in a valid written agreement — typically a prenuptial or postnuptial agreement — under §732.702, with the formalities that statute requires. Waivers are common in blended-family planning.
- Does the elective share replace the homestead or family allowances?
- No — they are separate protections. A surviving spouse may also have homestead rights, a family allowance, and exempt property rights, in addition to (and coordinated with) the elective share. The interplay is technical and fact-specific.
General information about Florida law, not legal advice.