This is a five part series regarding Florida’s elective share. Part I pertains to the relevant time periods associated with the elective share; Part II pertains to the property included in the elective estate (“inclusion amount”); Part III pertains to the property excluded from the elective estate; Part IV pertains to the value of assets passing to or for the benefit of the surviving spouse (“satisfaction amount”), and Part V pertains to the estate’s/beneficiaries liability for the unsatisfied balance of the elective share (“apportionment and contribution”).

What is an “elective share”?  The surviving spouse of a person who dies domiciled in Florida has the right to claim a portion of the deceased spouse’s estate known as the “elective share”, as opposed to the estate subject to administration. The elective estate encompasses not only the decedent’s probate estate but also a variety of non-probate transfers, including: (a) property passing by right of survivorship; (b) property in a revocable trust or a discretionary trust for the decedent’s benefit; (c) the cash surrender value of insurance policies on the decedent’s life; (d) death benefits payable under qualified and nonqualified retirement plans; and (e) certain other transfers.

Once the petition for the elective share is filed, the court must determine the amount of the elective share by calculating 30% of the fair market value of all of the deceased spouse’s property that is subject to the elective estate. The elective share is exclusive of the surviving spouse’s property and all exempt property such as homestead, furnishings, automobiles in the decedent’s name, and family allowances.

Next, the court must determine whether the value of assets passing to or for the benefit of the surviving spouse is greater than (>) or less than (<) the amount of the elective share.

If the value of assets passing to or for the benefit of the surviving spouse is less than the amount of the elective share, the elective share is payable from assets passing under the will and revocable trust. If these assets are insufficient to satisfy the elective share, then the elective share is payable other recipients of elective share property.

Once the elective share is satisfied, the remaining assets of the estate are distributed as though the surviving spouse had predeceased the decedent.

Elective Share Formula:

  1. Determine the amount included in elective estate (“inclusion amount”)
  2. Inclusion amount x 30% = elective share
  3. Determine the amount satisfying the elective share (i.e., the value of assets passing to or for the benefit of the surviving spouse) (“satisfaction amount”)
  4. If the satisfaction amount is greater than the amount of the elective share, then there is no elective share (it has been satisfied). Alternatively, if the satisfaction amount is less than the amount of the elective share, then there is an elective share; however, that amount is reduced by the satisfaction amount.
  5. If the satisfaction amount is less than the amount of the elective share, the elective share is payable from assets passing under the will and revocable trust (“apportionment”). If these assets are insufficient to satisfy the elective share, then the elective share is payable other recipients of elective share property (“contribution”).