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Driving to Get the Elective Share

When lead singer of The Cars died in September, 2019 in New York City, he apparently disinherited his long-time spouse, Paulina Porizkova.  Ric and Paulina had been married for 28 years but apparently had been separated and living apart, although they had not officially divorced. Not long before he died, he wrote his wife out of his will, completely disinheriting him. Paulina is currently working through the New York probate process in order to claim her "elective share."  I wanted to analyze the elective share issue from a Florida perspective.

In Florida, outside of a valid marital agreement (pre-nuptial or post-nuptial), a decedent's surviving spouse is entitled to four different rights:

  1. Homestead rights (generally, either a life estate in the property or 1/2 the value if the decedent had children)
  2. Exempt property (generally, the decedent's furniture, car, etc.)
  3. Family allowance (up to $18,000)
  4. Elective share 

In Florida, the general rule is that when you get married, you are not allowed to completely disinherit your spouse. The law generally wants to make sure your spouse is taken care of and is not left indigent or a ward of the state.  The right to the surviving spouse's estate is called the elective share. In Florida, the elective share is thirty percent (30%) of the decedent spouse's estate.  Importantly, the decedent's estate includes not only the probate estate (assets in the decedent's own, individual name and distributed according to the decedent's will), but just about every asset the decedent owned at the time of his or her death.  This is generally known as the "augmented estate."  Until 2001, the surviving spouse was only entitled to claim the elective share of the decedent's probate estate. But because it is easy to avoid probate, particularly with setting up a revocable living trust, the surviving spouse could easily get disinherited. Luckily, the Florida legislature saw this and made the correction some time ago.

Here are some common questions and answers on the elective share:

What is the Size of the Elective Share?

Thirty percent of the elective estate.

What is included in the Elective Estate?

Just about everything the decedent owned. Real estate, stocks, bonds, IRAs, assets in trusts, etc. A full list of assets is set forth in Florida statutes. One main exception to the rule is that the decedent spouse does not get a claim against the post-death appreciation of life insurance proceeds (i.e., the death benefit).

Is the Surviving Spouse Entitled to any Particular Assets?

Not really. The surviving spouse is entitled to the value of 30% of the assets, but not 30% of each asset. This generally excludes the homestead property.

How Long Does the Surviving Spouse Have to Claim the Elective Share?

The surviving spouse must claim the elective share as a part of the Florida probate process.  In probate, the election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney-in-fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.

Do You Need an Attorney to Help with the Elective Share?

If you are dealing with a situation where the surviving spouse has been disinherited or did not receive enough of the funds, then you should definitely get an attorney to help you. Filing for the elective share and calculating the amount is definitely not easy!

 

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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