← All guides
— Guide · Tables and example
Florida spousal elective share: 30 percent of the elective estate, what the elective estate includes and leaves out, the filing deadline, waiver, the court process and a worked example
The surviving spouse of a person who dies domiciled in Florida may elect 30 percent of the elective estate. What the elective estate includes and leaves out, the election deadline, waiver, the court process and a worked example.
Updated October 2026
The surviving spouse of a person who dies domiciled in Florida has the right to an elective share equal to 30 percent of the elective estate (§ 732.201, § 732.2065, Fla. Stat. (2026)). The election must be filed by the earlier of 6 months after service of the notice of administration on the spouse or 2 years after the death (§ 732.2135(1)). The court can extend the time for good cause (§ 732.2135(2)).
The elective estate is larger than the probate estate. It adds the homestead interest, bank and brokerage accounts with a beneficiary or survivor, revocable trusts, retirement plan death benefits, the cash value of life insurance and some gifts made in the last year of life (§ 732.2035). Property that already passes to the spouse from the decedent is applied first toward the 30 percent (§ 732.2075(1)), so an election pays only the shortfall.
Waiver
A written waiver signed before two subscribing witnesses, before or after marriage, can waive the elective share. A waiver signed after marriage requires fair disclosure of the signer's estate; one signed before marriage does not (§ 732.702).
Spousal rights
The elective share is one of several spousal rights. It is in addition to homestead, exempt property and allowances (§ 732.2105).
| Right | When it applies | Amount or effect | Source |
|---|---|---|---|
| Intestate share | The decedent left no will, or the will does not dispose of part of the estate | All of the intestate estate or one-half, depending on the decedent's descendants | § 732.102 |
| Pretermitted spouse share | The decedent married after making the will and the will does not provide for the spouse | The share the spouse would take if the decedent had died without a will, unless a prenuptial or postnuptial agreement provided for or waived it or the will shows an intent not to provide | § 732.301 |
| Elective share | The decedent died domiciled in Florida and the spouse files a timely election | 30 percent of the elective estate | § 732.201, § 732.2065 |
| Homestead | The decedent owned a protected homestead | The homestead cannot be devised if the owner is survived by a spouse or minor child, except to the spouse when there is no minor child. Without a valid devise, the spouse takes a life estate, or elects one-half as a tenant in common, if a descendant survives | Art. X, § 4(c), Fla. Const., § 732.4015, § 732.401 |
| Exempt property | The decedent was domiciled in Florida | Household furniture, furnishings and appliances up to a net value of $20,000, two motor vehicles, qualified tuition programs and certain benefits; a petition is due by the later of 4 months after service of the notice of administration or 40 days after related proceedings end | § 732.402 |
| Family allowance | The decedent was domiciled in Florida | A reasonable allowance in money, not to exceed $18,000 in total, for the spouse and the lineal heirs the decedent supported or was obligated to support | § 732.403 |
| Preference to serve as personal representative | The estate is intestate | The surviving spouse has first preference | § 733.301(1)(b)1. |
Sources: the 2026 Florida Statutes and Art. X, § 4, Fla. Const., as linked in each row. The guide on family allowance and exempt property covers the last two in full.
What the elective estate includes
The elective estate is the sum of the values of the property listed in § 732.2035, valued under § 732.2055. The fair market value is figured after deducting claims paid or payable from the elective estate and the mortgages, liens and security interests on the property (§ 732.2055(6)).
| Item | What is included | Section |
|---|---|---|
| 1. Probate estate | All property subject to estate administration in any state or the District of Columbia. | § 732.2035(1), § 732.2025(7) |
| 2. Protected homestead | The decedent's interest in the protected homestead. If the spouse takes a life estate or elects a one-half interest, the value counted is one-half of the fair market value; if the spouse takes a fee simple interest, the full value. | § 732.2035(2), § 732.2055(1)(a) |
| 3. Accounts and securities in POD, TOD, in-trust-for or survivorship form | The portion the decedent had the right to withdraw or use without a duty to account to anyone. For an account held by the entireties, one-half. | § 732.2035(3) |
| 4. Property held in joint tenancy with survivorship or by the entireties | The decedent's fractional interest: the value of the property divided by the number of tenants. The decedent's contribution to the purchase price does not decide the amount. | § 732.2035(4) |
| 5. Revocable transfers | The part of property transferred by the decedent that was revocable by the decedent alone or with any other person at death, except a transfer revocable only with the consent of all persons with a beneficial interest. A revocable living trust falls here. | § 732.2035(5) |
| 6. Transfers with retained income or discretion | The part of a transfer in which the decedent held the right to, or enjoyed, income or principal, or in which someone other than the spouse could distribute principal to the decedent. Four exceptions are listed in paragraph (c). | § 732.2035(6) |
| 7. Life insurance | The decedent's beneficial interest in the net cash surrender value of a policy on the decedent's life, immediately before death. The death benefit is not included. | § 732.2035(7), § 732.2045(1)(d) |
| 8. Pension, retirement and deferred compensation plans | Amounts payable to or for any person by reason of surviving the decedent, other than Railroad Retirement or Social Security benefits, under a pension, retirement or deferred compensation plan or any similar arrangement. Valued at the transfer tax value on the date of death. | § 732.2035(8), § 732.2055(4) |
| 9. Transfers in the year before death | Property transferred during the 1 year before death, to the extent not otherwise included, except transfers for medical or educational expenses that qualify under 26 U.S.C. § 2503(e) and, after that, the first annual exclusion amount for each donee under § 2503(b) or (c). Valued at fair market value on the date of the transfer. | § 732.2035(9), § 732.2055(5) |
| 10. Transfers in satisfaction of the elective share | An irrevocable transfer by the decedent during life to an elective share trust. | § 732.2035(10), § 732.2025(10) |
Sources: §§ 732.2025, 732.2035 and 732.2055, Fla. Stat. (2026). Where several subsections reach the same property, only the one that produces the largest elective estate applies, and a probate estate inclusion reduces the others (§ 732.2045(2)).
Two provisions touch the homestead. Section 732.2035(2) counts the decedent's homestead interest in the elective estate, and § 732.2105 says the elective share is in addition to homestead, exempt property and allowances. Both are in force. The court's order determining the amount of the share identifies the assets distributed to the spouse in satisfaction of it (Fla. Prob. R. 5.360(d)(6)).
What the elective estate leaves out
| Excluded | Rule | Section |
|---|---|---|
| Transfers irrevocable before the marriage | A transfer that became irrevocable before the statute's effective date, or after it but before the decedent married the surviving spouse. A pre-existing trust that meets the elective share trust requirements is treated as created in satisfaction of the elective share (§ 732.2155(4)). | § 732.2045(1)(a) |
| Transfers for adequate consideration | A transfer for which the decedent received adequate consideration in money or money's worth. | § 732.2045(1)(b) |
| Transfers with the spouse's written consent | A transfer made with the written consent of the spouse. Consent to split-gift treatment for gift tax is not written consent to the transfer. | § 732.2045(1)(c) |
| Life insurance proceeds above cash value | The proceeds of a policy on the decedent's life in excess of the net cash surrender value, however payable. A policy kept under a court order is also excluded. | § 732.2045(1)(d) and (e) |
| Community property | The decedent's one-half of property under the Florida Uniform Disposition of Community Property Rights at Death Act, and real property that is community property where located. | § 732.2045(1)(f) |
| Qualifying special needs trust | Property held in a qualifying special needs trust for the spouse on the date of death. | § 732.2045(1)(g) |
| General power of appointment only | Property in the gross estate for federal estate tax solely because the decedent held a general power of appointment. | § 732.2045(1)(h) |
| Waived homestead | The protected homestead, if the spouse validly waived homestead rights and received no interest in it at the death. | § 732.2045(1)(i) |
Sources: § 732.2045, Fla. Stat. (2026).
Worked example
The numbers below are round and invented, and each is net of claims and liens as § 732.2055(6) requires. The decedent leaves a spouse and an adult child. The will gives the spouse $100,000 outright and the rest to the child.
| Step | Amount | Basis |
|---|---|---|
| Probate estate | $500,000 | § 732.2035(1) |
| Revocable trust | $300,000 | § 732.2035(5) |
| POD bank account to the child | $100,000 | § 732.2035(3) |
| Retirement plan death benefit payable to the child | $200,000 | § 732.2035(8) |
| Term life insurance, $1,000,000 death benefit, no cash value | $0 | § 732.2035(7), § 732.2045(1)(d) |
| Elective estate | $1,100,000 | § 732.2035 |
| Elective share, 30 percent | $330,000 | § 732.2065 |
| Already passing to the spouse under the will | $100,000 | § 732.2075(1)(a) |
| Shortfall the election adds | $230,000 | § 732.2075(2) |
Illustration only. The shortfall is charged first to Class 1, the probate estate and revocable trusts, then to Class 2, then to Class 3 (§ 732.2075(2)). Class 1 recipients here are the child as devisee and the trust beneficiaries.
Deadlines and the court process
The election is a court proceeding with fixed periods. The steps below follow § 732.2135 and the Florida Probate Rules.
| Step | Deadline or rule | Source |
|---|---|---|
| 1. Notice of the deadline | The notice of administration must state the election deadline, which runs from service of the notice on the spouse. | § 733.212(2)(e), Fla. Prob. R. 5.240(b)(5) |
| 2. File the election | On or before the earlier of 6 months after service of the notice of administration on the spouse (or an attorney in fact or guardian of the property) or 2 years after the death. | § 732.2135(1) |
| 3. Serve the personal representative | The spouse promptly serves the election on the personal representative in the manner provided for formal notice. | Fla. Prob. R. 5.360(a)(1) |
| 4. Who may elect | The spouse. An attorney in fact or a guardian of the property may elect only with court approval after a finding that the election is in the spouse's best interests during the spouse's probable lifetime. | § 732.2125, Fla. Prob. R. 5.360(a)(2) |
| 5. Extension | A petition within the period, or within 40 days after a proceeding that affects the amount ends, whichever is later, but no more than 2 years after the death. Good cause is required. A petition tolls the time. | § 732.2135(2) and (4) |
| 6. Withdrawal | Within 8 months after the death and before the court's order of contribution. | § 732.2135(3) |
| 7. Notice of election | The personal representative serves a notice of election and a copy of the election on all interested persons within 20 days after service of the election. | Fla. Prob. R. 5.360(b)(3) |
| 8. Objections | An interested person serves a particularized objection within 20 days after service of the notice of election. Without an objection the court enters an order determining entitlement; with one, it decides after notice and hearing. | Fla. Prob. R. 5.360(b)(4) and (c) |
| 9. Amount and contribution | After the entitlement order, the personal representative files a petition to determine the amount and serves the inventory of the elective estate within 60 days. If the personal representative has not filed within 90 days, the spouse may. | Fla. Prob. R. 5.360(d)(1) to (3) |
| 10. Order of contribution | The court determines the share and contribution. The personal representative withholds contribution from distributions and collects it from recipients. Any part unpaid 2 years after the death bears interest at the statutory rate. | § 732.2145, Fla. Prob. R. 5.360(d)(5) and (6) |
Sources: the 2026 Florida Statutes and the Florida Probate Rules, October 15, 2026 edition, as linked in each row. The inventory of the elective estate is confidential and exempt from public records disclosure, with disclosure to the persons listed in § 733.604(1)(b).
How the share is paid
The order is set by § 732.2075 unless the will, or a trust the will refers to, says otherwise. The personal representative does not choose.
- First, property in the elective estate that passes or has passed to the spouse, including interests contingent on the election, the spouse's retirement plan payments, the decedent's one-half of community property that is paid to the spouse, term and other life insurance proceeds paid to the spouse if the spouse did not own the policy, and property held for the spouse in a qualifying special needs trust (§ 732.2075(1)).
- Then the unpaid balance is charged to one class of recipients at a time. Class 1 is the probate estate and revocable trusts. Class 2 is recipients of accounts in POD, TOD or survivorship form, joint property and life insurance cash value, plus certain retained-interest and retirement property. Class 3 is recipients of all other property. Protected charitable interests are left out of the three classes and reached last, only to the extent contribution does not disqualify the charitable deduction (§ 732.2075(2) and (4)).
- Within the probate estate, the abatement order in § 733.805 applies; within a trust, the order for claims in § 736.05053(2) and (3) applies (§ 732.2075(6) and (7)).
- Contribution is owed only by direct recipients of property in the elective estate and by the beneficiaries of the probate estate or of a trust that is a direct recipient (§ 732.2085(1)). A payor or other third party that acts in good-faith reliance on a governing instrument is not liable for paying the beneficiary (§ 732.2115).
Limits on the right
| Situation | Effect | Source |
|---|---|---|
| Waiver by agreement | Rights to the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference as personal representative may be waived wholly or partly. The waiver must be written and signed in the presence of two subscribing witnesses. No consideration is needed. A waiver of “all rights” waives all of those rights unless it says otherwise. | § 732.702(1) and (3) |
| Disclosure | After marriage, each spouse must make a fair disclosure of the spouse's estate to the other. Before marriage, no disclosure is required. | § 732.702(2) |
| Divorce | The right belongs to a surviving spouse. After a judicial dissolution, will provisions that affect the former spouse are void and the will is read as if the spouse died at the time of the dissolution. | § 732.201, § 732.507(2) |
| Marriage procured by fraud, duress or undue influence | The spouse is not entitled to rights that come from the marriage, including the elective share, unless the spouses voluntarily cohabited with full knowledge of the facts or later ratified the marriage. | § 732.805(1) |
| Killing the decedent | A person who unlawfully and intentionally kills, or participates in procuring the death of, the decedent takes no benefit under the Probate Code, and the estate passes as if the person died first. | § 732.802(1) |
| Separation without divorce | The sections on the elective share contain no exception for separation, and the right belongs to the surviving spouse of a person who dies domiciled in Florida. | § 732.201 |
Sources: the 2026 Florida Statutes, as linked in each row.
Electing does not forfeit what the will or another plan gives the spouse: § 732.201 says the election does not reduce what the spouse receives if the election were not made, and property passing to the spouse counts toward the 30 percent (§ 732.2075(1)), as Table 4 shows.
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site; rules to the Florida Probate Rules, October 15, 2026 edition, The Florida Bar.
- § 732.201, § 732.2025, § 732.2035, § 732.2045, § 732.2055, § 732.2065, § 732.2075, § 732.2085, § 732.2105, § 732.2115, § 732.2125, § 732.2135, § 732.2145 and § 732.2155, Fla. Stat. (2026). Elective share of surviving spouse.
- § 732.102, § 732.301, § 732.401, § 732.4015, § 732.402 and § 732.403. Intestate share; pretermitted spouse; homestead; exempt property; family allowance.
- § 732.507, § 732.702, § 732.802 and § 732.805. Effect of dissolution of marriage; waiver of spousal rights; killer; spousal rights procured by fraud, duress or undue influence.
- § 733.212, § 733.301, § 733.604, § 733.805 and § 736.05053. Notice of administration; preference in appointment; inventories and accountings; order of abatement; trust liability for claims.
- Art. X, § 4, Fla. Const.. Homestead; exemptions.
- Fla. Prob. R. 5.240 and 5.360, Florida Probate Rules, October 15, 2026 edition, The Florida Bar.
- Ch. 2026-57, Laws of Fla. (CS/HB 1337), effective July 1, 2026; it amends other sections and none of §§ 732.201 to 732.2155.
— Common questions
What people ask us about this.
How much is the elective share in Florida?
30 percent of the elective estate (§ 732.2065). The elective estate is the sum of the values of the property listed in § 732.2035, valued under § 732.2055, which includes the probate estate, the homestead interest, accounts with a beneficiary or survivor, revocable trusts, retirement plan death benefits, the cash value of life insurance and some transfers in the last year of life.
When is the deadline to elect the share?
The election must be filed on or before the earlier of 6 months after the date the notice of administration is served on the spouse, or an attorney in fact or guardian of the property, or 2 years after the date of death (§ 732.2135(1)). A petition for an extension must be filed within the period, or within 40 days after a proceeding that affects the amount ends, whichever is later, and no more than 2 years after the death. The court extends the time only for good cause (§ 732.2135(2)).
Can the elective share be waived?
Yes. A written contract, agreement or waiver signed in the presence of two subscribing witnesses can waive the elective share, wholly or partly, before or after marriage (§ 732.702(1)). Fair disclosure of the signer's estate is required if the waiver is signed after marriage (§ 732.702(2)). No consideration is needed (§ 732.702(3)).
Does a surviving spouse automatically inherit everything in Florida?
No. With a will, the spouse receives what the will gives plus the protections in Table 1: the elective share, homestead, exempt property and the family allowance. Without a will, the spouse takes all or one-half of the intestate estate, depending on the decedent's descendants (§ 732.102).
When a husband dies, what is the wife entitled to in Florida?
Is life insurance counted in the elective estate?
Only the net cash surrender value of a policy on the decedent's life is counted (§ 732.2035(7)). Proceeds above the net cash surrender value are excluded, whoever receives them (§ 732.2045(1)(d)). Life insurance paid to the spouse is applied toward the share first if the spouse did not own the policy (§ 732.2075(1)(d)).
Do retirement accounts count toward the elective share?
Yes, to the extent the account is a pension, retirement or deferred compensation plan or a similar arrangement. Amounts payable by reason of surviving the decedent are included at transfer tax value, except Railroad Retirement and Social Security benefits (§ 732.2035(8); § 732.2055(4)). Amounts paid to the spouse from those plans are applied toward the share first (§ 732.2075(1)(b)).
What if the surviving spouse is incapacitated?
An attorney in fact or a guardian of the property may elect, with court approval after a finding that the election is in the spouse's best interests during the spouse's probable lifetime (§ 732.2125; Fla. Prob. R. 5.360(a)(2)). A petition for approval tolls the time to elect (§ 732.2135(4)).
— Read next
Related guides
— Intake paused
Intake reopens late October 2026. The guides stay free.
Rachel is not accepting new clients until late October 2026. Leave your details and we'll call when intake reopens. If your matter can't wait, The Florida Bar Lawyer Referral Service — 800-342-8011 — refers you to another Florida attorney taking cases now.