Spousal Elective Share Requirements in Florida

At a glance

Requirements one by one

Governing law and system

Florida uses a broad elective estate, not a percentage of probate assets alone. Section 732.201 gives the surviving spouse of a Florida domiciliary the right, and Part II of chapter 732 supplies the base, valuation, contribution, deadline, and waiver rules. Florida Probate Rule 5.360 supplies the court procedure after the spouse elects.

Eligible spouse and who may elect

The right belongs to the surviving spouse of a person who died domiciled in Florida. The spouse may act personally. Under § 732.2125, an attorney in fact or guardian of the spouse's property may act only with approval from the probate court, which must find that the election is in the spouse's best interests during the spouse's probable lifetime.

Share amount and marriage length

The calculation begins with a flat statutory number: 30%. Section 732.2065 says, “The elective share is an amount equal to 30 percent of the elective estate.” Florida does not reduce or increase that percentage based on how long the marriage lasted.

Estate base and nonprobate transfers

Section 732.2035 is why the 30% figure cannot be applied only to the probate inventory. The elective estate starts with the probate estate and protected homestead, then reaches specified POD, TOD, survivorship, and tenancy-by-the- entirety interests. It also reaches property revocable at death, property whose income, use, or discretionary principal remained available to the decedent, life-insurance cash value, retirement and deferred-compensation benefits, and specified transfers during the final year.

A simple example shows the consequence. If the probate estate is $400,000 and a fully revocable trust holds another $600,000, applying 30% only to probate would start at $120,000. If both amounts enter the elective estate and no exclusion or deduction changes them, the starting share is $300,000 before credits for property already passing to the spouse.

Deductions, exclusions, and valuation

Not every transfer is pulled back. Section 732.2045 excludes qualifying irrevocable transfers made before marriage, transfers for adequate consideration, and transfers made with the spouse's written consent. For life insurance, the ordinary inclusion is the net cash surrender value immediately before death, not the entire death benefit; § 732.2045 excludes proceeds above that value.

The statute prevents double counting when more than one inclusion rule reaches the same property. For property without a special formula, § 732.2055 uses fair market value at death after deducting claims and any still-undeducted mortgages, liens, and security interests.

Deadline, extensions, and withdrawal

The ordinary deadline is the earlier of two dates: six months after a copy of the notice of administration was served on the spouse (or the spouse's attorney in fact or guardian), or two years after death. The two-year date is an outside cap.

A timely petition may obtain a good-cause extension. Section 732.2135 also allows a petition within 40 days after a proceeding affecting spouse-received property ends, if that is later than the ordinary period, but still never beyond two years after death. A timely extension or approval petition tolls the election clock. The election may be withdrawn only within eight months after death and before the court's contribution order.

Filing, service, and court procedure

Rule 5.360 separates entitlement from the later amount and contribution phase. The spouse files the election in the probate proceeding and promptly serves the personal representative by formal notice. The personal representative then has 20 days to serve the election notice and copy on all interested persons. An objection is due 20 days after that service.

If no objection is timely served, the court enters an entitlement order. If there is an objection, entitlement is decided after notice and hearing. Only after the entitlement order does the personal representative file the petition that states the amount, proposed distribution, and contribution sought from direct recipients.

Waiver and agreement requirements

Section 732.702 permits a complete or partial waiver before or after marriage, but the waiving spouse must sign a written contract, agreement, or waiver in the presence of two subscribing witnesses. A postmarital waiver requires fair disclosure of each spouse's estate. A premarital waiver requires no disclosure under this section, and neither kind needs consideration beyond execution of the agreement itself.

Payment sources and recipient liability

Property already passing to or for the surviving spouse is credited first, including covered retirement benefits. If a balance remains, § 732.2075 applies a priority system: Class 1 is the probate estate and revocable trusts; Class 2 includes specified survivorship, insurance-cash-value, retained-benefit, and retirement recipients; Class 3 contains the remaining elective-estate recipients.

Section 732.2085 limits contribution liability to direct recipients and to beneficiaries of a probate estate or trust that is itself a direct recipient. A recipient may in some circumstances contribute property rather than cash, and a distributed estate or trust beneficiary can carry a proportional contribution obligation.

Effect of election and other spousal rights

Florida does not treat the election as a rejection of everything the spouse was already given. Section 732.201 says it “does not reduce what the spouse receives if the election were not made” and does not treat the spouse as predeceased. Instead, § 732.2075 credits qualifying property already passing to the spouse toward the 30% amount and then collects only the unsatisfied balance.

What trips people up

• The deadline uses the earlier date. Service of the notice of administration can make the six-month date arrive long before the two-year outside cap.
• Life insurance is not automatically counted at the death-benefit amount. The ordinary inclusion is net cash surrender value; other inclusion provisions must be analyzed separately.
• The initial election does not calculate the entire case. Rule 5.360 first determines entitlement, then moves to an inventory, amount, distribution, and contribution phase.
• A postmarital waiver needs fair disclosure. The same statute expressly says a premarital waiver does not.

Common questions

Can a revocable living trust be part of the elective estate?

Yes. Section 732.2035(5) includes the portion of transferred property that was revocable by the decedent at death, subject to the statute's exclusions and valuation rules.

Can an agent or guardian file for the spouse?

Only with probate-court approval. The court must find the election is in the surviving spouse's best interests during the spouse's probable lifetime.

Can the election be withdrawn?

Yes, but only within eight months after death and before the court enters its order of contribution.

Statutes and sources

• Fla. Stat. §§ 732.201 and 732.2125 — right, domicile, effect, and who may elect. “The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.” Official chapter 732 (accessed 2026-08-02).
• Fla. Stat. §§ 732.2035–732.2055 — elective-estate inclusions, exclusions, anti-overlap rule, and valuation. “Except as provided in s. 732.2045, the elective estate consists of the sum of the values ... of the following property interests.” Official chapter 732 (accessed 2026-08-02).
• Fla. Stat. § 732.2065 — amount. “The elective share is an amount equal to 30 percent of the elective estate.” Official chapter 732 (accessed 2026-08-02).
• Fla. Stat. §§ 732.2075–732.2085 — satisfaction priorities and recipient liability. “Only direct recipients of property included in the elective estate and the beneficiaries of the decedent's probate estate or of any trust that is a direct recipient, are liable to contribute.” Official chapter 732 (accessed 2026-08-02).
• Fla. Stat. § 732.2135 — deadline, extension, withdrawal, and tolling. “The election must be filed on or before the earlier” of the six-month service date and the two-year death date. Official chapter 732 (accessed 2026-08-02).
• Fla. Prob. R. 5.360 — filing, formal notice, objections, entitlement order, and later amount/contribution proceeding. “An electing surviving spouse must file the election within the time required by law and promptly serve a copy of the election on the personal representative.” Current Florida Probate Rules (accessed 2026-08-02).
• Fla. Stat. § 732.702 — waiver. The waiver must be signed “in the presence of two subscribing witnesses”; postmarital waiver requires fair disclosure, while premarital waiver does not. Official chapter 732 (accessed 2026-08-02).