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What is an elective share and when should you take one?


In 1975, Florida enacted an elective share statute, abolishing the concepts of dower and curtsey in the process. Florida’s elective share is law that protects a surviving spouse by allowing the spouse to elect to take a percentage of their spouses estate upon death. If you have never been involved in the probate or estate planning process, you have probably never heard of this concept before. The elective share was enacted in Florida to protect a surviving spouse who was either disinherited or left a smaller portion of their spouse’s estate. It was designed to provide a safety net for the spouse and provide protection upon the death of the other spouse. An elective share gives the spouse the right to claim a portion of the spouse’s estate, rather than just the estate subject to administration[1]. The elective share is in addition to any homestead, exempt property, and allowances.[2] This can be important because when calculating the elective share, the elective share encompasses even non-probate transfers. When deciding whether it is more beneficial to claim an elective share over what was provided for you in your spouse’s estate, is of vital importance to meet with an experienced attorney to calculate the potential elective share.


How the elective share is calculated:

The amount of the elective share is equal to 30% of the elective estate.[3] The elective estate includes the other spouse’s probate estate, defined as all property wherever located subject to estate administration in any state[4], protected homestead, the other spouse’s interest in joint bank accounts, pay-on-death accounts, transfer-on-death accounts, property held in in Joint Tenancy and Tenancy by the Entirety, revocable trusts, other irrevocable transfers, life insurance policies, pensions and retirement plans, transfers made within one year of the other spouses death (including gifts), and irrevocable transfers to Elective Share trust.[5] As you can see by looking at the list, calculating the elective estate can be lengthy and time consuming. Importantly, you want to make sure you capture the entire elective estate when calculating the estate to ensure you make an informed choice when deciding whether to take an elective share, that is why hiring an experienced South Florida attorney is important.


What is not included:


Calculating the elective estate can also get complicated when figuring out what is not included in the elective estate. For example, some things not included in the elective estate are: any transfer of property which the deceased spouse received adequate consideration (in money or money’s worth for the transfer), property transferred with the written consent of the surviving spouse, the proceeds of any life insurance policy in excess of the net cash surrender value payable to the deceased spouse’s estate, property in a special needs trust on the date of the deceased spouse’s death, among other things. [6]



Requirements:


After calculating the elective estate, the elective share is an amount equal to 30% of the elective estate. To claim an elective share, you must file your election by the earlier of six months after the date of the estate’s notice of administration is served on you (or your attorney in fact), or two years after the date of the other spouse’s death.[7] Importantly, if you do not claim your elective share in this time period, it will be waived. Furthermore, you can waive your elective share rights in a valid pre or post-nuptial agreement or other agreement.


We know losing a spouse is a sad and stressful time in your life, and figuring out the elective estate can be time-consuming and confusing without the help of an experienced attorney. If you need representation regarding an elective share claim, we at Law Offices of Jennifer Grant can help you!

[1] Fla. Stat. § 732.201 [2] Fla. Stat. § 732.2105 [3] Fla. Stat. § 732.2065 [4] Fla. Stat. § 732.2305 [5] Fla. Stat. § 732.2045 [6] Fla. Stat. § 732.2055 [7] Fla. Stat. § 732.2135

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