Florida's New Elective Share Law

The old legal principle of dower and curtesy gave the surviving spouse a portion of the decedent's estate (if the decedent did not provide for him or her) so that the survivor was not left destitute. Most states codified this principle and called it the elective share. In Florida the portion was 30% of the net probate assets. It did not apply to assets passing outside of probate.

The Florida Legislature passed a new law that says the 30% is a right to a dollar amount that is computed by taking into account the decedent's probate assets and his or her assets that do not go through probate (called the "augmented estate"), such as the revocable inter vivos ("living") trust, the cash value of life insurance, property passing by right of survivorship and retirement funds. This law took effect 10/1/99 for all decedent's dying after 10/1/2001. The good news is you can create a trust for the benefit of your surviving spouse during his/her lifetime, which will count toward the spouse's elective share amount, but the principal could go to someone else at the spouse's death.