The right to claim an elective share on a decedent’s estate in Florida protects the surviving spouses from being simply cut out of a will and left with nothing. Is it possible for a spouse to intentionally waive an elective share in Florida? Read on to find out.
Elective Share Rights in Florida – Understanding the Concept
Florida Statutes §732.201 provides that “the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.”
As specified by Florida Statutes §732.2065, “the elective share is an amount equal to 30 percent of the elective estate.”
What Assets Are Subject to Elective Share in Florida?
Under Florida Statutes §732.2075 (1), unless otherwise provided in the decedent’s will or, in the absence of a provision in the decedent’s will, in a trust referred to in the decedent’s will, the following are applied first to satisfy the elective share:
- Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests
- To the extent paid to or for the benefit of the surviving spouse, amounts payable under any plan or arrangement described in s. 732.2035(8)
- To the extent paid to or for the benefit of the surviving spouse, the decedent’s one-half of any property described in s. 732.2045(1)(f)
- To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of insurance on the decedent’s life if, at the time of decedent’s death, the policy was owned by any person other than the surviving spouse
- Property held for the benefit of the surviving spouse in a qualifying special needs trust
- Property interests that would have satisfied the elective share under any preceding paragraph of this subsection but were disclaimed”
If the elective share is not fully satisfied and the listed options are over, Florida law provides that the “unsatisfied balance shall be allocated entirely to one class of direct recipients of the remaining elective estate,” which includes the decedent’s probate estate and revocable trusts.
Can a Spouse Waive an Elective Share in Florida? – The Verdict
A spouse can freely waive his or her elective share rights. Under Florida law, a waiver of spousal rights must be in writing and signed by the spouse waiving party. The document must be signed in front of two subscribing witnesses.
Generally, the waiver can be part of a prenuptial or marital agreement, as it is possible to waive different spousal rights within a single document.
As long as the document has proper language and meets the statutory execution requirements, a spouse can waive not only his or her elective share rights, but also intestate share, pretermitted share, homestead rights, and any other rights acquired through marriage.