Por Agustina Troiano
En esta noticia
Florida law provides a mechanism to protect a surviving husband or wife when a person dies and leaves a will that gives them no assets or gives them less than the law provides. The right is known as the elective share, and it allows a claim on part of the deceased person’s estate even when the will calls for a different distribution.
The elective share equals 30% of a state-defined estate. But that percentage is not necessarily calculated on all the assets listed in a will, and it does not mean the spouse automatically receives 30% of each property, account or asset.
To exercise this right, the surviving spouse must meet certain requirements and formally file the election within the legal deadline. The law also sets out which assets are counted in calculating the share and covers situations in which the claim may not be available.
What Florida’s elective share is and why it allows an inheritance claim even if the will excludes the spouse
The elective share is a right under Florida law that allows a surviving spouse to receive part of the deceased person’s estate, even if the spouse was left out of the will. According to Section 732.201 of the Florida Statutes, the provision applies when the deceased was domiciled in the state at the time of death.
To use it, the spouse must file a formal election in probate court. The right is not granted automatically and it does not replace other benefits a spouse may receive, such as certain rights to the family home and exempt property.
How the law calculates the 30% inheritance share
Section 732.2065 says the elective share equals 30% of the elective estate. That calculation base includes not only probate assets, but may also include other assets of the deceased, such as:
- The person’s share of the family home.
- Certain bank accounts and securities with designated beneficiaries.
- Interests in jointly owned property.
- Assets transferred to certain revocable trusts.
- Certain retirement benefits, pensions and life insurance.
The law sets out exclusions and specific rules to avoid double counting. For example, if the elective estate is worth $1 million, 30% equals $300,000. But the 30% is the total value to be received and not necessarily an amount on top of what was already inherited.
How long you have to claim the inheritance
The surviving spouse must formally file the election within the deadline set by Section 732.2135. As a general rule, the deadline is the earlier of:
- Six months after receiving notice of estate administration.
- Two years after the death.
In certain circumstances, a court extension may be requested, subject to legal limits. A valid prenuptial or postnuptial agreement can also include a waiver of the elective share.