Estate Planning
Elective Share

Elective Share

The elective share is the right of the surviving spouse to share in the decedent’s estate. If the surviving spouse makes the election, he or she is “taking against the will” and is presumed to have died for purposes of interpreting the will. Florida has an aggressive elective share law effective for decedents dying on or after October 1, 2001.

Before October 1, 2001

For decedents dying before October 1, 2001, the surviving spouse is entitled to 30% of the net probate estate. It was easy to avoid the elective share: all one had to do was transfer all assets to a revocable “living” trust.

On or After October 1, 2001

For decedents dying on or after October 1, 2001, the surviving spouse is entitled to 30% of the elective estate. The elective estate is a modified version of the gross estate for federal estate tax purposes. It includes the probate estate, of course, but also includes:

• Retirement plans,
• Cash value of life insurance,
• Taxable gifts made within one year of death, and
• All or part of assets that pass to others on death by title or contractual arrangements.

Sources of Payment & Enforcement

The law provides sources from which the elective share is payable, establishes the order of assets included in the elective estate that will be used to satisfy the elective share, and makes direct recipients and beneficiaries liable if the elective share is not satisfied.

Practical Impact

In many situations the elective share rules will not make much difference in the estate planning process, but there are cases where disregarding these rules could cause an estate plan to fail to achieve intended results.

Example: Where (i) both spouses have assets, (ii) there is no pre- or post-nuptial contract, (iii) all assets are in revocable living trusts (to avoid probate), and (iv) neither spouse plans to provide anything for the survivor, the survivor will nevertheless be entitled to 30% of the elective estate of the first to die. Even if neither spouse intended to take the 30%, it would still be payable if the survivor dies shortly after the first death, because the personal representative of the survivor’s estate would presumably have a legal duty to collect it.