Meet Our Team

 

David Fall Attorney Tampa
David Fall
Associate

dfall@olalaw.com

AREA OF PRACTICE /
Corporate & Tax
Estate & Probate

EDUCATION /
Western New England School of Law, LL.M.
in Elder Law and
Estate Planning, 2016
Univ. of Alabama, LL.M. in Taxation, 2012
Washburn Univ. School of Law, J.D., 2011
California State University, Chico, B.A. in Psychology, 2006

  Article:

Surviving Spouses Can Elect to Receive More Property From Your Estate

The Florida legislature recently made several important amendments to Florida's elective share statutes. This article describes some of the key changes and how those changes bring great news to the surviving spouses of deceased Florida residents.

In Florida, despite the terms of any will attempting to disinherit him or her, the surviving spouse of a deceased Florida resident is entitled to what's called an "elective share" of the decedent's property equal to 30% of the elective estate. The "elective estate" consists of the decedent's probate estate plus certain property that is omitted from the probate estate, such as the homestead and property jointly owned in a right of survivorship form. This means that the decedent's surviving spouse can elect to receive a potentially larger portion of the decedent's property than that left to him or her in the decedent's will. Moreover, the elective share is in addition to other rights afforded surviving spouses, such as entitlement to homestead protection, creditor exempt property, and the family allowance.

Prior to the recent amendments, the homestead property of a decedent was excluded from the elective estate. Now, homestead property is explicitly included in the elective estate, unless the spouse has previously waived homestead rights or the right to claim an elective share. However, the only way for a surviving spouse to waive his or her right to an elective share is if he or she fails to timely file an elective share claim, the surviving spouse had signed a waiver or agreed to a pre- or post-nuptial agreement giving up the elective share claim, the surviving spouse had secured the marriage by deceit, fraud, or duress, or the surviving spouse had unlawfully killed the decedent. Your will cannot simply disinherit your spouse.

Further, the recent amendments make it clear that the elective share claim of a surviving spouse sets the minimum amount of assets for which the spouse is entitled. This means that other beneficiaries who have received property included in the elective estate must return that property to the estate if the elective estate is insufficient to satisfy the surviving spouse's elective share claim. If the other beneficiary must return any property, they must pay interest on the property at the statutory interest rate.

Also, the court may now award costs, including attorney fees, to the prevailing party in a dispute involving entitlement to, valuation of, or satisfaction of the elective share. The awarded costs and fees are recoverable from the estate, a party's interest in the elective share or elective estate, or entering a judgment against a beneficiary of the estate. This means that the surviving spouse who successfully brings forth an elective share claim can have their attorney's fees and costs paid for by the decedent's estate on top of everything else they receive from the estate.

Elective share claims can be exceptionally complex. Surviving spouses have been granted much broader elective share rights through these sweeping legislative changes. If your spouse passes away while you're involved in a divorce, it's important to know how these changes can affect you.








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