Once you have made the initial determination as to what property is included in the elective estate, the next step is to determine what, if any, exclusions apply. The following fourteen categories of property are excluded from the elective estate:

  1. Prior irrevocable transfers. §732.2045(1)(a), F.S. This category excludes from the elective estate any transfer of property by the decedent to the extent the transfer is irrevocable before October 1, 1999[1] or after that date but before the date of the decedent’s marriage to the surviving spouse. Exception: Transfers to an elective share trust made prior to October 1, 1999. These transfers are treated as if they were made after October 1, 1999 and in satisfaction of the elective share. §732.2155(4), F.S.[2]
  1. Transfers for adequate and full consideration. §732.2045(1)(b), F.S. This category excludes from the elective estate any transfer of property by the decedent to the extent the decedent received adequate consideration in money or money’s worth for the transfer.
  1. Transfers with the written consent of spouse. §732.2045(1)(c), F.S. This category excludes from the elective estate any transfer of property by the decedent made with the written consent of the decedent’s spouse. Exception: Spousal consent to split-gift treatment under the United States gift tax laws does not constitute written consent to the transfer by the decedent.
  1. Life insurance in excess of the net cash surrender value. §732.2045(1)(d), F.S. This category excludes from the elective estate the proceeds of any policy of insurance on the decedent’s life in excess of the net cash surrender value of the policy whether payable to the decedent’s estate, a trust, or in any other manner.
  1. Life insurance maintained pursuant to court order. §732.2045(1)(e), F.S. This category excludes from the elective estate any policy of insurance on the decedent’s life maintained pursuant to a court order.
  1. Decedent’s one-half of community property. §732.2045(1)(f), F.S. This category excludes from the elective estate the decedent’s one-half of the property to which §§732.216-732.228, or any similar provisions of law of another state, apply and real property that is community property under the laws of the jurisdiction where it is located.
  2. Qualifying special needs trusts. §732.2045(1)(g), F.S. This category excludes from the elective estate property held in a qualifying special needs trust as defined in §732.2025(8), F.S. on the date of the decedent’s death.
  1. General power of appointment. §732.2045(1)(h), F.S. This category excludes from the elective estate property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment as defined in §732.2025(3), F.S.
  1. Protected homestead and exempt property. §732.2045(1)(i), F.S. This category excludes from the elective estate the decedent’s homestead[3], whether held by the decedent or by a trust at the decedent’s death.
  1. Certain property held in trust. §732.2155(6), F.S. This category excludes from the elective estate property held in a revocable or irrevocable trust at the decedent’s death if: (a) The property was an asset of the trust at all times from October 1, 1999 until the time of the decedent’s death; (b) The decedent was not married at the time the property was first transferred into the trust; and (c) The property was a non-marital asset within the meaning of §61.075, F.S. at the time of the decedent’s death.
  1. Exempt property. §732.2105, F.S. This category excludes from the elective estate exempt property as defined in §732.402, F.S. because the surviving spouse is entitled to receive these assets in addition to the elective share. Exempt property includes: up to $20,000 of household furniture, furnishings, and appliances in the decedent’s home; two motor vehicles as defined in §316.003(21), F.S.; all qualified tuition programs under IRC §529; and all benefits paid under §112.1915, F.S. (Teachers and school administrators; death benefits).
  1. Family allowance. §732.2105, F.S. This category excludes from the elective estate a family allowance as defined in §732.403, F.S. because the surviving spouse is entitled to receive a family allowance not to exceed $18,000.00 in addition to the elective share.
  1. Claims. §732.2055(5)(a), F.S. This category excludes from the elective estate claims paid or payable from the elective estate.
  1. Mortgages, liens or security interest. §732.2055(5)(b), F.S. This category excludes from the elective estate mortgages, liens or security interest on property in the elective estate.

[1] §732.2155(1) (1) reads: “Sections 732.201-732.2155 are effective on October 1, 1999, for all decedents dying on or after October 1, 2001. The law in effect prior to October 1, 1999, applies to decedents dying before October 1, 2001.”

[2] Example – Prior Lifetime QTIP. D transfers property worth $100,000 to an elective share trust prior to October 1 1999, providing for the income to be paid annually to S for life, then for the corpus of the trust to go to X. The trustee has no authority to distribute principal to S. D dies five years later, survived by S and X. At D’s death, the property in the trust is worth $500,000. D’s elective estate includes the $500,000 value of the trust at D’s death. S’s interest in the trust will satisfy $250,000 of S’s elective share right.

[3] The term ”protected homestead” means property described in Article X, section 4(a)(1) of the Florida Constitution, on which at the death of the owner, the exemption inures to the owner’s surviving spouse or heirs under Article X, section 4(b) of said state constitution. See § 731.201(29), F.S. Exception: property held as tenants by the entirety or JTWROS.