Florida Elective Share: A Spouse Cannot Be Disinherited

What Is the Florida Elective Share?

Florida law gives the surviving spouse of a person who dies domiciled in this state a share of the elective estate. The share is called the elective share because the surviving spouse must choose to take it. What a will or trust already leaves the spouse counts first toward the 30 percent, and the election adds only the shortfall up to that amount.

The elective share is 30 percent of the elective estate. The elective estate is a defined group of property interests, and it reaches beyond what passes through probate. Revocable trusts, joint accounts and retirement accounts all enter the calculation. Florida law states that the election does not reduce what the spouse receives if the election were not made, and the spouse is not treated as having predeceased the decedent. Property interests already passing to the spouse are applied first toward the 30 percent.

The share is in addition to homestead, exempt property and allowances. Homestead protects the family home. Exempt property includes household furnishings and motor vehicles. The family allowance is money for maintenance during the administration of the estate. Florida law provides that the elective share shall be in addition to these rights, and each one is calculated under its own statute.

Is the Elective Share 30 Percent or a Third, and Does the Length of the Marriage Matter?

The elective share in Florida is exactly 30 percent of the elective estate. The statute sets the percentage without any condition about how long the couple was married. A spouse married for one year has the same right as a spouse married for forty years. Florida law states that the elective share is an amount equal to 30 percent of the elective estate.

The figure is 30 percent, and the calculation starts from the elective estate, not the probate estate. On an elective estate of $3,000,000, the share is $900,000. The elective estate includes far more than probate assets. A will might leave the entire probate estate to someone else, but the elective estate pulls in revocable trusts, joint property and retirement accounts. The surviving spouse takes 30 percent of the combined total.

Florida law defines what property enters the elective estate and sets out the rules for valuing it, for waivers, and for who pays. Each of those questions has its own statutory answer and its own deadline. The statute lists each category of property that counts and the order in which beneficiaries contribute when the share is not satisfied by what already passes to the spouse. The percentage itself is fixed. The statute does not vary the percentage for any reason.

What Counts in the Elective Estate?

The elective estate is broader than the probate estate. Florida law lists the property interests that enter the calculation. Understanding the list helps both the surviving spouse who may claim and the family members who will pay.

The probate estate is the starting point. Every asset that passes through probate counts.

The decedent's interest in the protected homestead counts. Protected homestead is the home that has the constitutional protection Florida provides, where that protection passes to a surviving spouse or heirs at the owner's death. A home titled in joint tenancy with right of survivorship or tenancy by the entirety is counted under the joint-property rule, because the joint ownership takes it outside the protected-homestead category.

Payable-on-death and transfer-on-death accounts count. Florida law includes the decedent's ownership interest in accounts or securities registered in pay-on-death, transfer-on-death, in-trust-for or co-ownership with right of survivorship form. For accounts held as tenants by the entirety (a form of ownership that exists only between spouses), the decedent's ownership interest is one-half. For other joint accounts, the ownership interest is the portion the decedent had the right to withdraw or use without a duty to account to anyone else.

Joint property with right of survivorship counts. Florida law includes the decedent's fractional interest in property held in joint tenancy with right of survivorship or in tenancy by the entirety. The fractional interest is the value of the property divided by the number of tenants. A home held by two people as joint tenants with right of survivorship contributes one-half of its value to the elective estate.

Revocable trusts count. Florida law includes property transferred by the decedent to the extent that at the time of death the transfer was revocable by the decedent alone or with any other person. A revocable living trust does not avoid the elective share. The trust assets enter the elective estate and the surviving spouse may claim 30 percent. A transfer that requires the consent of all beneficiaries to revoke is not included.

Are Joint Accounts, Annuities and Retirement Accounts Included?

Joint accounts and joint property enter the elective estate, but the amount depends on how the account is titled. Florida law treats accounts held as tenants by the entirety differently from other joint accounts.

Accounts held as tenants by the entirety contribute one-half to the elective estate. Florida law defines the decedent's ownership interest in such accounts as one-half of the value. A checking account worth $100,000 held as tenants by the entirety contributes $50,000.

Other joint accounts contribute the portion the decedent could withdraw or use without a duty to account. Florida law looks to that portion. A joint account with a child where the decedent could withdraw the entire balance contributes the full value. A joint account where the decedent could withdraw only half contributes only the decedent's half.

Joint real property and other assets follow a fractional rule. Florida law includes the decedent's fractional interest in property held in joint tenancy with right of survivorship or in tenancy by the entirety. The fractional interest is the property's value divided by the number of tenants. A vacation home held by three people as joint tenants with right of survivorship contributes one-third of its value.

Annuity payments and similar arrangements count. Florida law includes arrangements where the decedent possessed the right to income or the use of property. A right to payments under a commercial or private annuity, an annuity trust, a unitrust or a similar arrangement is treated as a right to that portion of the income of the property necessary to equal the payment.

Pension and retirement accounts count, with two exceptions. Florida law includes amounts payable to any person by reason of surviving the decedent under any public or private pension, retirement or deferred compensation plan. Social Security benefits and Railroad Retirement benefits are excluded. All other retirement benefits payable on death enter the elective estate. An IRA and a pension with a death benefit both count.

Can a Trust or a Gift Before Death Get Around the Elective Share?

A revocable trust does not remove property from the elective estate. Florida law counts property transferred by the decedent to the extent the transfer was revocable at death. The statute reaches any transfer the decedent could undo alone or together with another person, unless undoing it required the consent of everyone who had a beneficial interest in the property.

Property the decedent kept the income or use of also counts. Florida law includes property if the decedent possessed the right to, or in fact enjoyed the possession or use of, the income or principal at the time of death. A right to payments under an annuity, a unitrust or a similar arrangement counts as a right to the income necessary to equal those payments.

Transfers in the last year of life enter the elective estate unless they fall within two exceptions. Transfers for medical or educational expenses that qualify for the federal gift tax exclusion are excluded. The first annual exclusion amount transferred to each donee during the year is also excluded, but only to the extent the gift qualifies for the gift tax exclusion. Any gift above the annual exclusion amount to any one person in that final year enters the elective estate and increases the base from which the 30 percent is calculated.

One kind of transfer escapes the elective estate entirely. Florida law excludes any transfer that became irrevocable before the date of the decedent's marriage to the surviving spouse. Property placed in an irrevocable trust years before a second marriage does not count when the second spouse elects. Whether a transfer qualifies depends on when it became irrevocable and whether the decedent kept income or use of the property. A free consultation can sort out the timing.

What Is Left Out of the Elective Estate?

Florida law lists several categories that do not enter the elective estate at all.

A transfer for which the decedent received adequate consideration in money or money's worth is excluded.

A transfer the spouse consented to in writing is also excluded. Spousal consent to split-gift treatment for federal gift tax purposes does not count as written consent to the transfer itself. The consent must be in writing.

Life insurance on the decedent's life counts only up to the net cash surrender value of the policy immediately before death. The death benefit above that value is excluded. A policy maintained under a court order is excluded entirely.

Property held in a qualifying special needs trust (a trust that preserves government benefits for a person with a disability) on the date of death is excluded. The decedent's one-half of community property or property to which Florida's Uniform Disposition of Community Property Rights at Death Act applies is also excluded.

A protected homestead may be excluded under one narrow condition. If the surviving spouse validly waived homestead rights and did not receive any interest in the protected homestead upon the decedent's death, the homestead is excluded from the elective estate. If the spouse waived homestead but still received an interest in the home, the exclusion does not apply.

What qualifies as a written consent or a valid waiver depends on the documents and the facts. A free consultation can review them.

How Is the 30 Percent Calculated?

The elective share is 30 percent of the elective estate, calculated after claims, mortgages, liens and security interests are deducted. Florida law computes value after subtracting all claims paid or payable from the elective estate and all encumbrances on the property.

The homestead follows its own rule. If the surviving spouse receives a fee simple interest (full ownership), the full fair market value enters the calculation. If the spouse takes a life estate (the right to live in the home for life, with a vested remainder passing to descendants at death) or elects to take an undivided one-half interest as a tenant in common with the descendants, only one-half of the fair market value enters the elective estate. A spouse who validly waived homestead rights but still received some other interest in the home has that interest valued as ordinary property.

A worked example shows how the numbers combine. Suppose the decedent owned a home worth $600,000 with a mortgage of $400,000 that the decedent owed, a brokerage account worth $300,000, and a revocable trust holding $200,000. The spouse takes the home outright, so the full net home value enters the elective estate.

The 30 percent share on a $700,000 elective estate is $210,000. What the spouse already receives (the home, for example) is applied first toward that $210,000 before anyone else contributes.

Is the Elective Share Ever 50 Percent?

The elective share is always 30 percent of the elective estate. Florida law sets the amount at 30 percent, with no variation based on the length of the marriage or the size of the estate.

The 50 percent figure comes from homestead, a separate right. When a decedent is survived by a spouse and one or more descendants, the surviving spouse may take a life estate in the protected homestead, with a vested remainder to the descendants. In lieu of that life estate, the spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half vesting in the descendants.

The two rights are separate. The elective share is 30 percent of the broad elective estate, which includes probate assets, joint property, revocable trusts and retirement accounts. The homestead right is a choice between a life estate and a one-half ownership interest in the home itself.

When the elective estate is calculated, a home taken as a life estate or as a one-half interest is valued at half of its fair market value. A home taken outright is valued at full fair market value. The valuation rule affects what enters the 30 percent calculation, but the share remains 30 percent.

Both rights exist side by side. The elective share is in addition to homestead, exempt property and the family allowance. A surviving spouse may claim the elective share and also take the homestead right. The question of which combination produces the right outcome depends on the assets and the family situation.

What Is the Deadline to Claim the Elective Share?

The deadline to file an elective share election is the earlier of two dates. The first is 6 months after service of a copy of the notice of administration on the surviving spouse, or on an attorney in fact or guardian of the property of the surviving spouse. The second is 2 years after the date of the decedent's death. The earlier date controls.

A spouse who needs more time may petition the court for an extension. The petition must be filed within the original deadline, or within 40 days after any proceeding that affects what the spouse would receive under the first-priority sources concludes, whichever is later. No extension petition may be filed more than 2 years after the decedent's death. If the court grants the petition, the election must be filed within the time allowed by the extension.

Filing a petition for an extension of time, or filing a petition for court approval to make the election, tolls the running of the deadline. The time stops while the petition is pending.

Florida law allows a surviving spouse, or an attorney in fact, guardian of the property, or personal representative of the surviving spouse, to withdraw an election at any time within 8 months after the decedent's death and before the court's order of contribution (the order telling each recipient how much to pay toward the share).

The deadlines matter because a late claim is no claim at all. A surviving spouse who learns of a death months afterward, or who receives no formal notice, still faces the 2-year outer limit on filing an extension petition. A spouse served with the notice of administration faces the 6-month clock. Missing the applicable deadline forfeits the right.

A waiver of service of the notice of administration counts as service on the day the waiver is filed. The surviving spouse may never see the notice itself, yet the six-month deadline starts running. Florida law requires any petition for an extension to be filed before the time expires. Once the deadline passes, the court has no discretion and must strike the election as untimely.

A pending Miami-Dade lawsuit shows how quickly the deadline can slip by. According to the complaint, a widow signed a waiver on October 12, 2021 and her lawyer emailed it to the estate the same day. The waiver was filed October 13, 2021. Six months later, on April 13, 2022, the deadline expired. The widow filed her election on August 31, 2023, within two years of the death but sixteen months late. On August 12, 2026 the probate court struck the election with prejudice. The firm's case story on the lost election tells the full sequence. No petition to extend was ever filed, and the court held the time permitted by Florida law had run.

What Else Does a Surviving Spouse Receive Besides the 30 Percent?

The elective share is in addition to homestead, exempt property and allowances. Florida law provides these rights separately, and the 30 percent election does not reduce them. What the spouse receives under homestead is applied first toward satisfying the 30 percent.

Homestead rights give a surviving spouse an interest in the protected homestead when the decedent left descendants. Florida law provides that if the homestead is not devised as allowed by the constitution, and the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder (the part that passes at death) to the descendants in being at the time of the decedent's death per stirpes (divided by family line).

In lieu of that life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common. The remaining undivided one-half interest vests in the decedent's descendants in being at the time of death, per stirpes. The election to take the one-half interest must be made within 6 months after the decedent's death and during the surviving spouse's lifetime.

Exempt property belongs to the surviving spouse or, if there is no surviving spouse, to the children. Exempt property includes household furniture, furnishings and appliances in the decedent's usual place of abode up to a net value of $20,000 as of the date of death. Exempt property also includes two motor vehicles that do not individually have a gross vehicle weight in excess of 15,000 pounds, held in the decedent's name and regularly used by the decedent or members of the immediate family. College savings plans authorized by federal law are also exempt property.

The family allowance provides a reasonable allowance in money out of the estate for the surviving spouse and lineal heirs the decedent was supporting or was obligated to support during administration. The allowance may not exceed a total of $18,000.

Who Actually Pays the Elective Share?

The 30 percent calculation produces a dollar amount. Paying that amount follows a sequence, unless the decedent's will or a trust referred to in the will provides otherwise.

The first source is property that already passes to or for the benefit of the surviving spouse. Property interests included in the elective estate that pass or have passed to the spouse are applied first, including interests contingent upon making the election (unless those contingent interests would diminish other property that would otherwise satisfy the share). Amounts payable to the spouse under retirement plans and pensions described in the elective estate statute are also applied first, along with the decedent's one-half of any community property passing to the spouse, and the proceeds of any term or other policy of insurance on the decedent's life if the policy was owned by someone other than the spouse. Property held for the spouse in a qualifying special needs trust also counts toward satisfaction.

Only after these first sources are exhausted does the estate look elsewhere. The unsatisfied balance is allocated entirely to one class of recipients, and if that class is insufficient, to the next class, in this order of priority.

Class 1 is the decedent's probate estate and revocable trusts. Class 2 is recipients of property interests included in the elective estate under the provisions covering accounts and securities registered in payable-on-death, transfer-on-death, in-trust-for or co-ownership with right of survivorship form, fractional interests in joint property, life insurance cash value, and property the decedent had the power to designate at death. Class 3 is recipients of all other property interests included in the elective estate.

Protected charitable interests are set apart and do not contribute in the same priority.

The sequence means beneficiaries of a revocable trust and recipients of joint accounts may owe part of what they received to satisfy a claim.

Who Can Elect for a Spouse Who Cannot Act?

A surviving spouse who lacks capacity may still have an election made on the spouse's behalf. Florida law allows the right of election to be exercised by an attorney in fact or a guardian of the property of the surviving spouse, with approval of the court having jurisdiction of the probate proceeding.

Before approving the election, the court must determine that the election is in the "best interests" of the surviving spouse during the spouse's probable lifetime. The court is looking at whether receiving the elective share will help the spouse during the years the spouse is expected to live, given the spouse's circumstances.

The court approval requirement applies to filing the election. A petition for an extension of time tolls the running of the deadline without requiring court approval. A petition for approval to make the election also tolls the time.

A spouse with dementia, a spouse in a nursing home, or a spouse who suffered an injury that affects decision-making may still have the election made for the spouse, but only through court approval. Acting on one's own, without a court order, is not permitted for an attorney in fact or guardian seeking to file the election itself.

The same rule governs the homestead election. When a surviving spouse may elect to take an undivided one-half interest in the homestead instead of a life estate, an attorney in fact or guardian of the property of the surviving spouse may make that election with court approval. The court must determine that the election is in the "best interests" of the surviving spouse during the spouse's probable lifetime.

Can a Prenup or Postnup Waive the Elective Share?

A surviving spouse's right to the elective share can be waived before or after the marriage. Florida law allows the waiver by a written contract, agreement or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of two witnesses applies to contracts signed by Florida residents.

A waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse waives the elective share. Florida law lists the elective share alongside the intestate share, pretermitted share, homestead, exempt property, family allowance and preference in appointment as personal representative. A waiver of all rights waives all of them unless the document says otherwise.

An agreement signed after the marriage requires fair disclosure by each spouse. Fair disclosure means telling the other spouse about your estate. An agreement signed before the marriage does not require disclosure.

An agreement signed elsewhere is valid in Florida if it was valid when signed under the laws of the state or country where it was executed. The rule applies whether or not the person is a Florida resident at death. A couple who marries in another state and moves to Florida years later can still rely on the original agreement.

Waiving homestead rights is a separate step named in the same statute. A spouse who validly waived homestead rights and took nothing in the protected homestead at death has that homestead excluded from the elective estate altogether. Waiving the elective share and waiving homestead are two separate decisions, and the agreement should address both if that is the intention.

The question of what an agreement actually waives depends on its exact words. A document that never mentions the elective share by name can still waive it if the language is broad enough. The Ladd and Taylor cases show how Florida courts have read agreements that never used the words "elective share."

If You Moved to Florida With a Plan From Another State

The elective share belongs to the surviving spouse of a person who dies domiciled in Florida. Domicile controls. A person who spent years in another state and then moved to Florida may face a Florida elective share claim against the estate if the person dies domiciled here.

An agreement signed in another state still counts. Florida law says any contract, agreement or waiver executed by a nonresident of Florida is valid in this state if valid when executed under the laws of the state or country where it was executed. A couple who signed a prenuptial agreement in New York, then moved to Florida, can rely on that agreement here if it was valid in New York at the time they signed it.

A will written elsewhere can face a Florida claim. The decedent may have drafted the will in a state with a different elective share. When the decedent dies domiciled in Florida, the surviving spouse may elect against that will. The 30 percent share applies to the elective estate as calculated under Florida law, regardless of where the will was signed.

Couples who know they will retire to Florida may want a prenuptial or postnuptial agreement that satisfies Florida's witness requirement, even if the state where they sign it does not require witnesses. The words of the agreement determine what rights are waived, and the Ladd and Taylor cases show that Florida courts will read the whole document.

What Florida Courts Have Said

Two cases show how Florida courts have read prenuptial agreements that never mentioned the elective share by name.

The Ladd case involved a couple who lived together for eleven years before marrying in 2002. Before the wedding, they signed a prenuptial agreement prepared by the wife's own attorney. The agreement said all property in the husband's name alone "shall remain the sole and separate property" of the husband, that the wife "shall not claim or acquire any interest in any such property during the marriage or in the event of dissolution of the marriage," and that the husband intended his separate property to pass to his children. The agreement never used the words "elective share."

After the husband died, the wife sought an elective share. At trial, the wife's testimony about what she understood the agreement to mean was admitted. The trial court made no finding that the agreement was ambiguous. On appeal, the Third District reviewed the agreement, concluded it was ambiguous, and held that the trial court had properly admitted the wife's testimony. The wife had testified that she understood that upon her husband's death, his children would inherit all of his separate property. Based on that testimony, the trial court found the agreement waived her elective share, and the Third District affirmed. The wife still received jointly held property, including a $15,000 account and the house they lived in.

The Taylor case went the other direction at the trial level, then reversed on appeal. A couple signed a five-paragraph agreement the day before their 1996 wedding. One paragraph said all property belonging to each party "shall be, and shall forever remain, their personal estate" and "shall remain forever free of claim by the other." The trial court found the agreement silent about death and let the widow testify that she did not intend to waive her rights at death. A Florida appeals court reversed. The court held that Florida law does not require the parties to name an intent to relinquish rights given to surviving spouses. A general relinquishment of "all rights" or equivalent language is enough.

The practical point is that the exact words of an agreement decide what it waives, and courts will read the whole document. A spouse who believes the agreement covers only divorce may learn otherwise after the other spouse dies.

What Happens When the Elective Share Becomes a Fight?

A dispute over the elective share is litigation. Litigation includes a fight over whether the surviving spouse is entitled to the share at all, over what property belongs in the elective estate or what it is worth, and over how the share is satisfied.

Florida law gives the court authority to award taxable costs, including attorney fees, in any proceeding under this part of the statute where there is an objection or dispute. The court may direct payment from the estate. The court may direct payment from a party's interest in the elective share or the elective estate. The court may enter a judgment that can be satisfied from other property of the party. The statute gives the court flexibility to put the cost where the court finds it belongs.

The statute also addresses what happens when the personal representative does not file a petition to determine the amount of the elective share as required by the Florida Probate Rules. In that situation, the electing spouse or the attorney in fact, guardian of the property, or personal representative of the electing spouse may be awarded from the estate reasonable costs, including attorney fees, incurred in connection with the preparation and filing of the petition.

No flat fee covers an elective share claim or defense. Litigation is quoted per matter at the consultation. Each case involves different assets, different witnesses, different agreements and different arguments about what the words mean. The free consultation is the place to walk through the facts and learn what a claim or a defense would involve.

Frequently Asked Questions

Common Situations

A man with grown children from a first marriage remarried and titled most of his accounts jointly with his new wife. After he died, the children reviewed the elective share calculation and discovered that because the wife already received property exceeding 30 percent of the elective estate through the joint accounts, no additional payment came from the probate estate. The joint titling satisfied her claim before it reached them. Property passing to the spouse is applied first toward the 30 percent, which can mean no one else pays.

A widow discovered her husband's will left everything to his children and nothing to her. She filed an election within the deadline, claiming 30 percent of the elective estate. The probate estate was small, and the revocable trust was too small to satisfy the claim, so Florida law reached the recipients of the payable-on-death accounts. Those beneficiaries owed part of what they received to satisfy her share. Her election reached assets that never went through probate.

What Decides These Cases Is Usually the Wording, Not the Money

In 14 years of law practice, the elective-share call that worries me is not the one from a spouse who was left out. A spouse who was left out has a statute on their side and a number attached to it. The call that worries me comes from the adult children, holding a prenuptial agreement they were told solved this, asking me to confirm it did.

I read the Florida cases on spousal waivers rather than relying on a summary of them, and the pattern is consistent enough to plan around. The agreements that fail are almost never the unfair ones. The agreements that fail are the ones that described the property carefully and never used the words the statute actually names.

One case I have reviewed shows how thin the margin is. A couple lived together for eleven years and then married in 2002. Before the wedding they signed a prenuptial agreement, and her own attorney drafted it. The agreement said his property stayed his, and it named his two children as the people he intended to receive it. A matching paragraph said her property stayed hers and named her son. The agreement never used the phrase "elective share" and it never used the phrase "all rights," which is the wording the Florida statute singles out.

After he died she filed to take the elective share. His children objected. Because the agreement could honestly be read two ways, the judge let her testify about what she had understood when she signed it, and she answered the way a truthful person answers. She had understood that her son would receive her property and that his children would receive his. Her own answer decided the case. The court held she had waived the elective share, the appellate court affirmed, and she kept the house they had lived in and a joint account holding $15,000.

I have come across a case that runs the same question the other way, and the pair is the reason I draft these the way I do. A second wife and the adult children of a first marriage, again, with an agreement signed before the wedding. This one contained a release clause saying that each party releases all claims or demands in the property or estate of the other, however and whenever acquired, including future acquisitions. The widow challenged the will anyway. She lost on summary judgment in 2025, and the appellate court affirmed, holding she had no standing to contest it at all.

Set the two side by side and the lesson is not about who deserved to win. Both surviving spouses ended up without the share. One of them got there after an evidentiary hearing in which she had to testify about conversations from years earlier, and an appeal on top. The other was decided on the documents. The release clause did not change the outcome. It changed whether anybody had to hold a trial to reach it, and a trial is the part the family pays for.

Reading that outcome from the drafting side is what changed how I write these. Nobody in that case behaved badly. Her lawyer wrote the agreement, both of them understood the bargain, and the document still cost a hearing, an appeal and four years to interpret because it recited intentions instead of using seven words the legislature had already blessed.

Avoid assuming that a signed prenup has settled this. In my practice the question I ask first is not whether an agreement exists but whether it uses the statutory language, was signed in front of two subscribing witnesses, and was signed before or after the wedding, because the answer to the last one changes what a challenger has to prove.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Any case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Sources of Law

• Fla. Stat. §732.2065: the elective share is 30% of the elective estate. §§732.2035 and 732.2045: what is included in (and excluded from) the elective estate. flsenate.gov (retrieved 2026-06-08)
• Fla. Stat. §732.2135: time to file the election (the earlier of 6 months after service of the notice of administration or 2 years after death). §732.702: waiver of spousal rights.
• Fla. Stat. §732.702: waiver of spousal rights. Subsection (1) requires two subscribing witnesses and treats a waiver of “all rights” or equivalent language as waiving the elective share. Subsection (2) requires fair disclosure only where the waiver is executed after marriage. Fla. Stat. §61.079(7): enforcement of premarital agreements, where absent disclosure defeats the agreement only in combination with unconscionability at execution. Verified against the 2025 statute text 2026-09-01.
• Fla. Stat. §732.201: the right belongs to the surviving spouse of a person who dies domiciled in Florida. Verified against the 2025 statute text 2026-09-01.
• De Holguin v. Holguin Lourido, No. 3D24-0014 (Fla. 3d DCA Sept. 17, 2025) (slip op.): an antenuptial agreement releasing “all claims or demands in the property or estate of the other, however and whenever acquired,” left the surviving spouse without standing to contest the will, decided on summary judgment. Grounds for invalidating a marital agreement are set out in Casto v. Casto, 508 So. 2d 330 (Fla. 1987). Not final until disposition of any timely rehearing motion. Read in full 2026-09-01.
• Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009): an unambiguous prenuptial agreement keeping each spouse’s property separate “forever” barred the surviving spouse from taking from the estate (the case retold above).
• Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006): a prenuptial agreement that recited each spouse’s intent for their separate property, without using “elective share” or “all rights,” was ambiguous, so parol evidence was admitted and the surviving spouse’s own testimony supported a finding that she had waived the elective share. Read in full 2026-09-01.
• Fla. Stat. §732.2035(3) (pay-on-death, transfer-on-death, in-trust-for and survivorship accounts, with entireties accounts at one half), (4) (other joint property at the value divided by the number of tenants), (6) (retained income, use or discretionary principal, with the annuity rule), (7) (net cash surrender value of life insurance), (8) (pension, retirement and deferred compensation plans, excluding Social Security and Railroad Retirement), (9) (transfers in the year before death, with the medical, educational and annual exclusion carve-outs); §732.2045(1)(a), (c), (d), (f) (transfers irrevocable before the marriage, transfers made with the spouse's written consent, insurance proceeds above cash value, the decedent's half of community property); §732.2055(1)(b) and (6) (mortgages, liens and claims deducted); §732.401(2) (the surviving spouse's election of an undivided one-half interest in the homestead, within 6 months after death). Read from the 2026 Florida Statutes in elder/will/ch-732-2026.md (2026-10-19).
• Separate spousal protections: homestead (Fla. Const. Art. X, §4; §732.401), exempt property (§732.402), family allowance (§732.403).

Updated on November 12, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Elective-share outcomes depend on the specific facts and on strict deadlines. Do not send confidential information until we have agreed to represent you.