You might assume that your estate plan belongs entirely to you. Many people believe they can decide who receives their assets after death without restrictions.
However, Florida law provides specific protections for surviving spouses that limit your ability to cut them out completely. Knowing these rules can help you avoid surprises and plan more effectively.
What is Florida’s elective share protection?
Florida gives surviving spouses a right to claim a portion of the deceased spouse’s estate regardless of what the will says. This protection exists even if your will explicitly states that your spouse receives nothing:
- Elective share amount: A surviving spouse can typically claim 30% of the elective estate, which includes various assets you owned or controlled.
- Broad asset inclusion: The elective estate often encompasses more than probate assets and may include life insurance, retirement accounts and certain transfers made during your lifetime.
- Time limits: A surviving spouse generally has six months from receiving formal notice to file an elective share claim.
- Waiver option: Spouses can give up this right through a valid prenuptial agreement or postnuptial agreement signed before death.
Your spouse must choose to claim the elective share. The law does not automatically grant them this portion without action on their part.
Can I plan around spousal protections?
You cannot completely disinherit a spouse through your will alone in most cases. However, several planning strategies might address your goals while respecting Florida law:
- You and your spouse could sign a marital agreement where both parties voluntarily waive certain inheritance rights
- Some couples structure their assets and beneficiary designations to satisfy the elective share requirement while directing other property according to their wishes
Tricky family situations can benefit from careful estate planning that accounts for Florida’s spousal protections. Legal guidance from a source you trust can help you create an estate plan that fulfills your goals. It can also help you stay within state requirements and avoid potential challenges from your surviving spouse.