Historically, the right of surviving wives to claim an elective share of a decedent’s estate was used to protect widowed women and guarantee that the community was not responsible for supporting her.
Currently, the elective share protects both widowed husbands and wives, but the effects on the inheritance process remain similar. Read on to understand how elective share laws work in Florida.
What is the Elective Share in Florida? – The Basics
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.”
The same statute adds that “the election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.”
Even though Florida Statutes §732.2065 expressly provides that “the elective share is an amount equal to 30 percent of the elective estate,” the calculation process is not as simple as it might sound.
The main reason is the fact that the elective share is not applied exclusively to the decedent’s estate subject to probate, but not all assets cannot be considered part of the estate to calculate the elective share.
What Assets Are Considered Part of an Elective Estate?
State law has a long list of assets that can be considered part of an elective estate upon the death of a Florida resident. Identifying these assets is often the most complex part of the process, as it will likely require a superior level of expertise.
Florida Statutes §732.2035 describes property entering into elective estate, including but not limited to:
- “The decedent’s probate estate
- The decedent’s interest in property which constitutes the protected homestead of the decedent
- The decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of survivorship form (…)
- The decedent’s fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with the right of survivorship or in tenancy by the entirety. For this purpose, “decedent’s fractional interest in property” means the value of the property divided by the number of tenants
- That portion of property, other than property described in subsections (2) and (3), transferred by the decedent to the extent that at the time of the decedent’s death the transfer was revocable by the decedent alone or in conjunction with any other person”
While these assets do not comprise the whole list, there are several details involved in the process.
If the property initially subject to the elective share is not sufficient to fulfill the 30% payable to the surviving spouse, assets that would otherwise have been distributed or already have been distributed to other beneficiaries can be used to satisfy the elective share.