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Sometimes, a person leaves out his or her spouse from an estate plan. Whether intentional or intentional, it is important to know that there are laws in place that guard the surviving spouse against this occurring. While such protection may be good news to the surviving spouse, it can be an unfortunate as well as a costly surprise for the intended beneficiary of the deceased as it will likely cut into the share they were set to receive. Here, we will talk more about Florida’s elective share law, the law that protects a surviving spouse from being disinherited by the deceased spouse.

Florida Elective Share Law

Florida’s elective share refers to the percentage of the deceased spouse’s estate that the surviving spouse may claim, regardless of what is stated in the decedent’s will. Florida provides that the electives’ share is 30% of the decedent’s estate. While that may sound fairly straightforward, the calculation of the share can be complicated. This is especially true when considering that some property may not really be considered part of the estate but may still be included for purposes of calculating the elective share.

The surviving spouse’s right to the elective share holds regardless of whether or not the couple was separated or estranged at the time of death and regardless of the duration of the marriage. The elective share remains a right of a spouse unless there is a legally valid agreement that explicitly waives this right. This is often accomplished through the execution of a prenuptial or postnuptial agreement. The agreement, however, must observe the proper legal formalities and both parties to the agreement must be fully aware of and understand the terms they are agreeing to.

It should also be clear that an elective share is meant to provide the surviving spouse with a means of overriding estate plans put in place by the deceased spouse. No such election need be made in the absence of any such plans. Without a will or other estate planning measures in place, the spouse will be deemed to have died intestate. Thus, Florida’s intestate succession laws will dictate the distribution of the estate’s assets. Pursuant to the laws of intestate succession, it is likely that the surviving spouse will receive a portion of the estate that is greater than that which he or she would have received had an estate plan been in place and an assertion of the right to the elective share been made.

Estate Planning Attorney

Do you have questions about your estate plan and what it can accomplish? Talk to the dedicated estate planning team at Verras Law. We can develop an estate plan that takes estate planning laws into account so that your estate plans are valid and effectively meet your goals. Our estate plans are strong and uniquely tailored to meet the needs of each client. Come to us with your estate planning questions, comments, and concerns. We are here to help. Contact Verras Law today.