The elective share is the right of the surviving spouse to share in the decedent’s estate. If the surviving spouse makes the election, he or she is "taking against the will" and is presumed to have died for purposes of interpreting the will. Florida has a radically new elective share law, technically effective October 1, 1999, but most purposes effective for decedent’s dying on or after October 1, 2001.

For decedents dying before October 1, 2001, the surviving spouse is entitled to 30% of the net probate estate. It was easy to avoid the elective share. All one had to do was transfer all of one’s assets to a revocable "living" trust.

For decedent’s dying on or after October 1, 2001, however, the surviving spouse is entitled to 30% of the "elective estate". The elective estate is a modified version of the gross estate for federal estate tax purposes. It includes the probate estate, of course, but also includes retirement plans, cash value of life insurance, taxable gifts made within one year of death and all or part of assets which pass to others on death by virtue of the title or contractual arrangements.

The new law provides sources from which the elective share is payable, the order of assets included in the elective estate which will be used to satisfy the elective share, and makes direct recipients and beneficiaries of the assets liable if the elective share is not satisfied.

In most situations the new elective share rules will not make much of a difference in the estate planning process, but there are quite a few situations where disregarding these new rules could result in a failure of the estate plan to achieve intended results.

For example, where (i) both spouses have assets, (ii) there is no pre-or post-nuptial contract, (iii) all assets are in revocable living trusts (to avoid probate) and (iv) neither spouse plans to provide anything for the survivor, the survivor will nevertheless be entitled to 30% of the elective estate of the first to die. While that may not be a problem where neither spouse actually intends to take the 30%, the 30% would nevertheless be payable if the survivor dies shortly after the first death. This is so because the personal representative of the survivor’s estate would presumably have a legal duty to collect the 30%.

©2007 Steven M. Chamberlain, Esq. All rights reserved. Republication with attribution is permitted.