The Elective Share & Probate
When a person’s spouse dies, they are entitled, by law, to a significant share of the assets, even if the deceased person’s will states otherwise. If the decedent left no will, the surviving spouse is potentially entitled to an even larger share of their partner’s assets. This portion is known as the elective share, and it is created under state law to prevent people disinheriting their spouses, which can put some in penury. That said, the elective share is not well understood, and it is important to at least be aware of the basics if you are in this situation.
Defining The ‘Elective Estate’
In Florida, the elective share is an amount equal to 30 percent of the elective estate – though in itself, this can confuse some people, because the “elective” state is not the same as the probate estate. In fact, the elective estate may comprise the probate estate plus several other potential assets that may or may not exist in a person’s specific situation – for example, any interests in joint bank accounts, certain types of real estate tenancies, retirement accounts, and many other monetary instruments.
One notable exception is the homestead, which is free and clear of the elective estate. Aside from the homestead, however, there are only a handful of expenses that can be deducted from the elective share – claims against the estate, mortgages, liens, and security interests, which all must be repaid before assets can pass to beneficiaries (if at all possible). Once those obligations have been satisfied, the elective share comes next in order of priority in terms of disbursing the decedent’s estate.
Election Not Required
It is important to keep in mind that the elective share is not necessarily mandatory; a surviving spouse may decline to take it. However, if they decide to do so, they must do so within a certain time frame. A surviving spouse must choose to take the elective share on the earlier of one of two dates: either (1) 6 months after being served with a copy of the Notice of Administration; or (2) the two-year anniversary of the decedent’s passing.
The main reason why a spouse will decline the elective share is that the will offers a greater benefit – for example, if the decedent’s will grants their surviving spouse 50 percent of the estate, taking the elective share makes less financial sense. However, it is crucial that the decision to decline the elective share be voluntary – if a spouse feels pressured, the issue of undue influence may become a factor. Consulting an experienced probate attorney can help to settle any issues.
Contact A Hollywood, FL Probate Attorney
If you have recently lost your spouse, the elective share may be a valid option for you, but it is always a good idea to assess your options. A Hollywood, FL probate attorney from the Law Offices of Steven A. Mason, P.A. can help to clarify matters for you. Contact our office today at (954) 963-5900 to speak to an attorney.