What is the Florida Elective Share Statute?

1. What is the Florida Elective Share Statute?

• The Florida Elective Share Statute is a law designed to protect surviving spouses from being disinherited. Pursuant to Section 732.2065 of the Florida Statutes, a surviving spouse can claim a 30% share of the deceased spouse's elective estate, which includes both probate and certain non-probate assets, regardless of the provisions in the deceased's will. 

2. What assets are included in the elective estate under this statute?

• The elective estate includes assets that go through probate and non-probate assets like certain trusts, joint bank accounts, and some transfers made within a year of death.

3. How long does a surviving spouse have to file for an elective share in Florida?

• A surviving spouse must file for an elective share within a specific timeframe, typically within six months after the date of death or two years if not served with a notice of administration.

4. How does the Elective Share Statute impact estate planning in Florida?

• The statute requires estate planners to account for the elective share when structuring an estate plan. This includes considering how different types of assets are impacted and planning for fair and lawful distribution.

5. Can trusts be used to address the elective share obligations?

• Yes, in some cases properly structured trusts (such as an irrevocable trust) can be utilized to meet elective share obligations while maintaining the integrity of the overall estate plan.

6. How do marital agreements affect the elective share rights?

• Prenuptial and postnuptial agreements can be used to address elective share rights, allowing spouses to agree in advance on how assets will be distributed.

7. Are there any strategies to manage the size of the elective estate?

• Strategic gifting can be used to manage the size of the elective estate, but it must be done carefully to ensure legal compliance and avoid unintended consequences.

8. What are the main challenges in planning estates with the Elective Share Statute?

• Key challenges include balancing the legal rights of the surviving spouse with the deceased's wishes, complex asset valuation, and ensuring compliance with the statutory requirements.

9. Why is it essential to consult a Florida estate planning lawyer regarding the Elective Share Statute?

• A knowledgeable estate planning lawyer is crucial for navigating the Elective Share Statute. They provide expert advice on legal compliance, assist in drafting marital agreements, and guide surviving spouses through the elective share election process.