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Taking The Elective Share In A Probate Estate


When someone makes a last will and testament, their intention is to convey their assets to the beneficiaries they name in the document. However, Florida law has what is known as the elective share, which grants a percentage of a deceased person’s estate to their surviving spouse, regardless of what is contained in the will. This can sometimes work out – but sometimes it can lead to a long and costly argument if not well understood.

30 Percent Of The Estate

Florida law states unequivocally that the surviving spouse of a person who passes away in Florida is entitled to an elective share, regardless of the terms of the will. It comprises 30 percent of the “elective estate,” which covers most of the decedent’s property – even, in certain circumstances, assets like life insurance policies payable to someone else.

It is important to be aware that this is the total amount that is generally due to a surviving spouse. For example, if the will leaves them an amount equal to 10 percent of the estate, they would then have the right to acquire another 20 percent of the estate by appropriating other assets, even those already granted to other beneficiaries. This can sometimes soften the blow for other heirs, but feathers can still be metaphorically ruffled.

Can It Be Avoided?

Sometimes, a surviving spouse may not want to take the elective share for several different reasons – some of the most common include having property of their own, or wanting assets to pass directly to a child. It is possible to waive the elective share through a previously-executed prenuptial (or postnuptial) agreement, or in some cases, a spouse may miss the proverbial window – there is a time limit in which such claims must be filed.

If you are a beneficiary named in a deceased person’s will, and their surviving spouse chooses to take the elective share, there is unfortunately little you can do to contest that choice, though you do have the right to contest the election with the court. Florida law places a high priority on the spousal relationship, though, and in most cases, the court will rule in their favor unless inappropriate behavior has occurred.

Call A Hollywood, FL Probate Law Attorney

After someone passes away, it is not uncommon for people to have certain expectations of their will, and the existence of the elective share can be a very unpleasant surprise. However, it can be the only lifeline a surviving spouse has. If you have concerns about the elective share, a Hollywood probate attorney from the Law Offices of Steven A. Mason, P.A. can help you to manage them. Contact our office today to speak to an attorney.



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The Law Offices of Steven A. Mason, P.A., is located in Hollywood, FL and serves clients in and around Dania, Hollywood, Fort Lauderdale, North Miami Beach, Pompano Beach, Miami, Pembroke Pines, Miami Beach, Deerfield Beach, Hallandale, Aventura, Boca Raton, Broward County, Miami-Dade County and Palm Beach County.

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