Under Florida law, the Elective Share statute serves as a roadblock to disinheriting a surviving spouse. Section 732.201 of the Florida Probate Code grants the surviving spouse a share of the estate of his or her spouse. In Florida, the Elective Share is an amount equal to 30% of the “elective estate.” Generally, the surviving spouse has a 6-month window of time within which to file for the Elective Share after receiving service of a copy of the Notice of Administration of the predeceased spouse’s estate. For good cause, the surviving spouse may petition the Court for an extension of time to determine whether to file for the Elective Share.
In Florida, the elective estate includes all assets held in the Decedent’s probate estate, as well as certain pay-on-death accounts; the Decedent’s beneficial interest in the net cash surrender value of any life insurance policies on the Decedent’s life; and certain other assets set forth in Section 732.2035 of the Florida Probate Code. Once the value of the Decedent’s elective estate is determined, the surviving spouse can make a determination as to whether it is more beneficial to file for the Elective Share or to take under the Decedent’s will.