The Florida Elective Share is a means by which surviving spouses receive a fair share of their deceased spouse’s estate, no matter what the estate planning documents say. In general, the Florida elective share provides that the surviving spouse is to receive no less than 30% of the deceased spouse’s assets. See Fla. Stat. s. 732.201.
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Making the Florida Elective Share Election
The timing and procedure for a Florida surviving spouse to take an elective share is governed by section 732.2135, Florida Statutes (2017), and Florida Probate Rule 5.360.
A surviving spouse has six months from the service of the Notice of Administration to file an election to take elective share, or two years from Decedent’s death, whichever is earlier. See § 732.2135 (1).
Upon receipt of an election to take an elective share, rule 5.360(b)(3) requires the personal representative to serve notice of the election on all interested persons within twenty days. And under rule 5.360(b)(4), interested parties may file an objection within twenty days after the personal representative serves them notice of the election.
Calculating the Time For Making the Elective Share Election
In In Re Estate of Rasor, Edward Rasor’s surviving spouse, Virginia, petitioned to establish and probate Edward’s lost or destroyed will. Virginia alleged that Edward’s son, Gregg, was qualified to serve as the personal representative of Edward’s estate. On the same day that Virginia petitioned to probate Edward’s lost or destroyed will, she filed an “Election to Take Elective Share” of Edward’s estate, and a “Notice of Election to Take Elective Share.” She served both documents on Gregg and his siblings.
Virginia then died.
Gregg petitioned for administration of Edward’s estate. On April 23, 2018, the Florida probate court admitted the will to probate and appointed Gregg as personal representative.
On May 11, 2018, Gregg filed both the notice of administration and Virginia’s notice to take elective share. That same day, he also filed proof of service of these documents on himself, individually as an interested person, and on his siblings.
Twenty days later, Gregg objected to Virginia’s election to take an elective share, alleging that she was unduly influenced when she made her election.
Virginia’s personal representative, Jay Dick, argued that Virginia’s estate was entitled to an elective share of Edward’s estate because Virginia timely filed her election before she died, and also because Gregg failed to file his objection within 20 days of service of Virginia’s election and therefore waived his objection to Virginia’s election.
The Florida probate court agreed with Virginia’s personal representative that the objection was untimely and struck the objection. The probate court found that Virginia’s estate was entitled to an elective share of Edward’s estate.
The Florida appellate court first determined that the clock did not start to run regarding service of the election to take elective share on interested parties, and any objections to the notice, until the appointment of Gregg as personal representative:
Gregg acknowledged receipt of Virginia’s election on November 9, 2017. Had Gregg been appointed as Edward’s personal representative at that time, he would have had twenty days to serve notice of the election on the interested parties and an additional twenty days after service of the notice to file an objection. See Fla. Prob. R. 5.2405(b)(1) (“[A]ny notice shall be deemed as having been served on the personal representative on . . . the date on which the person acknowledges in writing receipt of the notice[.]”).
But because Gregg had not been appointed as Edward’s personal representative yet, the clock did not start to run when Virginia served him with her notice of election. Gregg’s duties as personal representative did not begin until the time of his appointment nearly six months later. See § 733.601, Fla. Stat. (2017) (“The duties and powers of a personal representative commence upon appointment.”). So Gregg was not required to object within twenty-days of receiving Virginia’s notice of election in November 2017.
Instead, Gregg needed to act when he was appointed as Edward’s personal representative. As personal representative, Gregg needed to “serve a notice of election within 20 days following service of the election, together with a copy of the election, on all interested persons in the manner provided for service of formal notice.” Fla. Prob. R. 5.360(b)(3). In the notice of election, Gregg had to notify interested persons, among other things, that “objections to the election must be served within 20 days after service of the copy of the notice of election.” See Fla. Prob. R. 5.360(b)(3)(B).
And in this case, the personal representative did exactly what he needed to do under the timelines set forth under Florida law regarding service of the election to take elective share and to object thereto:
Within twenty days of his appointment as Edward’s personal representative, Gregg served Virginia’s election on himself and his siblings, complying with rule 5.360(b)(3)’s service requirements by the personal representative. Gregg’s compliance with rule 5.360(b)(3) initiated the twenty-day period for interested persons to object to the election under rule 5.360(b)(4). Again, under rule 5.360(b)(4), Gregg timely acted. Now acting in his individual capacity, Gregg served an objection to Virginia’s election within twenty days of service of the notice by the personal representative.
Therefore, because Gregg served his objection to Virginia’s election within twenty days of service of the notice of election by the personal representative, his objection was timely. The Florida appellate court reversed the probate court’s order striking his objection to the election to take elective share.
Extension of Time to Claim the Florida Elective Share
The time for making the elective share election can be extended. Section 732.2135(4) allows a petition to be filed to claim the elective share.
In Futch v. Haney, an October 13, 2021 opinion from Florida’s Second District Court of Appeal, the Court determined that the surviving spouse’s petitions for extension of time to file her election for elective share were timely under Florida law, and reversed the order of probate court denying her petitions and sustaining the objections to her election.
Decedent Alvin Futch died in April 2019. Tom Haney filed a petition for administration in June 2019, and was appointed as personal representative of the estate in July 2019. The notice of administration was filed on August 14, 2019.
On January 6, 2020, Mary Jo Futch, Decedent’s surviving spouse, filed a petition for extension of time to make an election for elective share. Futch requested a three month extension until April 8, 2020. As grounds for the request, Futch said that she had recently received documents relating to the calculation of the elective share and she needed time to review them.
On April 7, 2020, Futch filed a second petition for extension of time to make an election for elective share. Futch cited to limitations imposed by COVID-19, and requested an extension until June 8, 2020 or “a date when the [c]ourt resumes in-person probate proceedings.” On June 9, 2020, Futch filed a third petition for extension of time to make an election for Florida elective share.
On June 10, 2020, Futch filed her election to take elective share.
The Florida personal representative, the trustees of the decedent’s trust, and the beneficiaries all filed objections to Futch’s election. The Florida probate court denied Futch’s June 9, 2020 petition for extension on the grounds that it was untimely filed.
The appellate court ruled strongly in favor of the surviving spouse, reading the plain language of the statute to require only a timely filed petition or petitions to extend the time to elect to take an elective share under Florida law:
The plain language of the statute does not limit the amount of time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely subsequent petition seeking additional time, and it does not require a hearing or ruling on a petition in order for the time to be tolled. Subsection (2) addresses when a trial court may grant an extension (for good cause shown) and provides that if the trial court grants the extension, the election must be filed within the time allowed by the extension. But subsection (2) does not require the trial court to grant a petition for extension before the time is tolled; such a reading would render meaningless the tolling provision in subsection (4).
How To Calculate The Florida Elective Share
Calculate the Elective Estate
The elective share calculation starts with a computation of the Elective Estate. The Elective Estate attempts to measure all of the property of the decedent that should be fairly included in the calculation. The Elective Estate includes the following assets:
- property in the probate estate
- decedent’s interest in property which constitutes the protected homestead of the decedent
- gifts within the last year before death
- pay on death accounts
- jointly titled assets
- assets in a revocable trust
- retirement accounts
- cash surrender value of life insurance owned by the decedent (but not the death benefit, unless the death benefit is paid to the probate estate)
- annuities
The personal representative might not know about all of the non-probate assets that comprise the Elective Estate, so may need to investigate. A surviving spouse might also perform discovery to try to identify and value all of the potential assets of the Elective Estate.
Net Elective Estate
Once the Elective Estate is determined, the Net Elective Estate is calculated. Essentially, liabilities of the decedent are subtracted from the Elective Estate to determine the Net Elective Estate. Importantly, expenses of administration are not liabilities for this purpose and therefore do not reduce the Net Elective Estate in Florida. (Other states have a different rule.) A consequence of not taking into account expenses of administration is that any attorney fees or costs incurred in litigating an elective share dispute are borne by the other beneficiaries of the estate, not the surviving spouse seeking elective share.
Elective Share
Once the Net Elective Estate is computed (Elective Estate – Liabilities of the Decedent), 30% of such amount is the Elective Share. See Fla. Stat. s. 732.2065.
Satisfaction of Elective Share
Next is to compute the Satisfaction of the Elective Share. The amount needed to satisfy the Elective Share is simple – the amount of the Elective Share minus that amounts already received (or to be received) by the surviving spouse from all sources as a result of the death of the decedent.
In some cases, the surviving spouse has already received the full value of the Elective Share, and in other cases there is an amount that remains that must be paid to the surviving spouse to fully satisfy the Elective Share.
To pay that portion of the Elective Share not yet paid, the Florida Probate Code sets forth an ordering of what assets are used to satisfy the Elective Share. The Florida elective share statute s. 732.2075 sets forth several classes of assets to satisfy the Elective Share, in the following order:
- Class 1: The Decedent’s probate estate and revocable trusts
- Class 2: Pay on Death, Transfer on Death and In Trust for Accounts; Property held as Joint Tenants with Right of Survivorship or Tenancy by the Entirety; life insurance cash surrender value
- Class 3: Any other property interest included in the Elective Estate computation
Florida Elective Share Earns Interest
Elective Share May Not Be Charged for Estate Attorney Fees
Because attorney fees are not a permitted statutory deduction, the elective share is not reduced by such fees.
Waiving the Elective Share
The right to receive an elective share can be waived by a valid marital agreement.
Given the passage of time, married couple may wish to alter their premarital arrangement, to give a surviving spouse far more than was contracted for. Coordinating the existing marital agreement with estate planning documents is critical, as the case of Wilson v. Wilson explains.
The Wilsons entered into a prenuptial agreement. In the prenuptial agreement, each waived their right to an elective share. However, the prenuptial agreement allowed the couple to make testamentary gifts to each other by will or codicil without invalidating the prenuptial agreement:
Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other. Either of the parties may elect to make a gift to the other by Will without invalidating this provision and may thereafter change or eliminate the gift by a codicil or another Will without in any way affecting the continued effectiveness of this Agreement.
Any changes to the prenuptial agreement had to be in writing and signed by both the wife and the decedent.
The husband then executed a will and created a trust. In the trust, the husband directed the trustee to set aside:
as much property as is necessary to satisfy the wife’s elective share pursuant to Section 732.201, et seq., of the Florida Statutes, provided the requirements thereunder are satisfied and a timely election is filed.
Only the husband signed his will and his trust.
The wife filed a notice of election to take elective share.
Decedent’s son, and trustee of the trust, moved to strike the wife’s election to take elective share.
The probate court struck the election. The trial court found that the prenuptial agreement:
- permitted the parties only to give testamentary gifts by will or codicil (not by trust)
- waived the wife’s ability to receive an elective share
- could only be modified in writing with the signature of both parties
The decision was affirmed on appeal. The appellate court held that the wife waived her right to an elective share, and that the husband’s trust did not modify the prenuptial agreement because it was not signed by the wife. The court further stated that:
If the decedent intended to give the wife a testamentary gift, he could have done so by will or codicil without relying on an elective share and specifically the requirements of the elective share statute.
Therefore, even though the husband’s intent was to give his wife an amount equal to the elective share, the requirement that the wife actually elect to take an elective share was the fatal flaw. The prenuptial agreement waived the wife’s right to an elective share, and she was prevented from pursuing it, despite the language in the Trust.
The result in Wilson is really unfortunate. The husband wanted his wife to have property in the amount of her elective share. By focusing on the mechanism (obviously flawed) for how the wife was to receive her bequest, the court ignored the husband’s intent and rigidly focused on the prenuptial agreement, which neither the husband, nor the wife, wanted to control the outcome. Under the court’s logic, the result could have been different if the wife had just signed the trust, because then the prenuptial could have been considered modified.
