If you have recently learned that your spouse’s will leaves you with substantially less than you expected, or perhaps nothing at all, you may be wondering whether Florida law allows such disinheritance. The answer is both reassuring and urgent. Florida’s elective share statute does not permit a spouse to be disinherited—but only if you claim your rights within a strict deadline.
At Beller Law, we calculate your elective estate entitlement by analyzing joint accounts, retirement benefits, life insurance values, and transfers made within one year of death, not just what the will states. Rebeccah Beller brings over 25 years of trial experience to cases involving disputed estates and spousal rights. Contact Beller Law today to speak with an attorney before it is too late.
Can You Disinherit Your Spouse in Florida?
The direct answer is no. A Florida testator cannot completely disinherit a spouse. A surviving spouse can reject the will and claim 30% of the elective estate, even if they are not mentioned in the will.
The testator’s freedom to dispose of property has limits. Florida recognizes that spouses contribute to the marital partnership and depend on it for financial security. This protection is established law, not speculative reasoning.
What Counts as the Elective Estate
The elective estate is much broader than the probate estate. Florida law expressly defines it to prevent a testator from using asset transfers to avoid spousal protection.
The elective estate includes:
- Probate assets;
- Protected homestead;
- Certain interests in jointly held property, payable-on-death accounts, and other beneficiary-designated property;
- Retirement accounts and pension benefits;
- Life insurance cash surrender value;
- Revocable trusts and property where the decedent retained income rights; and
- Gifts made within one year of death, excluding direct medical or educational expenses and the annual per-person gift exclusion.
Knowing precisely what comprises the elective estate helps you claim your full statutory entitlement.
The Hidden Deadline
The statutory protection only exists if claimed on time. The surviving spouse must file an election within a strict deadline.
The election must be filed in the probate court before the earlier of:
- Six months after the spouse is served with notice of administration, or
- Two years after the date of the death.
In some circumstances, a surviving spouse may ask the court for an extension for good cause, subject to the requirements and limitations in Florida law. However, generally, missing the deadline forfeits the right to claim the elective share entirely. Because the deadline can pass before you fully understand the estate or discover all of its assets, it is important to discuss your options with an attorney as soon as possible.
Waiving the Spousal Elective Share
Prenuptial and postnuptial agreements allow couples to waive the spousal elective share but only if they follow the required legal procedures. Without such an agreement, the 30% right stands.
How the Elective Share Claim Works
Once you decide to claim your elective share, the process begins with filing an election in the probate court. This election must be in writing and filed within the deadline. The court then determines what is the elective share you are entitled to by calculating the total value of the elective estate and determining 30% of that amount.
The elective share is not necessarily paid entirely from probate assets. Florida law identifies the property interests that may be used to satisfy the elective share, and the calculation can require determining the value of assets that passed outside probate. Depending on the estate, disputes may arise over valuation, what property belongs in the elective estate, or which assets must contribute toward the spouse’s share. The calculation and distribution process typically takes several months, and contested claims can extend longer.
An attorney experienced in elective share disputes can help you navigate these complications and advocate for you to claim your full entitlement.
The Path Forward and Your Immediate Next Steps
If you are a surviving spouse who suspects you have been unfairly excluded or significantly undercut in your deceased spouse’s will, you must act now. Florida’s elective share protection exists, but only if claimed within the deadline. Waiting for more information, hoping the situation resolves, or assuming probate will handle it correctly can cost you hundreds of thousands of dollars.
The first step is consulting an attorney who can calculate your actual elective estate entitlement. At Beller Law, we help ensure families understand their legal rights and the processes that affect their futures, empowering them to make informed decisions during life’s most difficult transitions. Contact Beller Law today to take the next step toward protecting your rights.