The Short Answer

In Florida probate, an elective share claim is a surviving spouse’s statutory right to claim a set percentage of the decedent’s “elective estate,” even if the will (or trust plan) leaves the spouse less. Defending against an elective share claim usually focuses on whether the election was timely and properly made, and whether the assets and calculations included in the “elective estate” are correct.

What Florida Law Says

Florida gives a surviving spouse the right to choose an “elective share” instead of (or in addition to) what they would otherwise receive under the estate plan. The elective share is calculated as a percentage of the “elective estate,” a concept that can reach beyond the probate estate and may involve disputes about what property is included and how it is valued.

The Statute

The primary law governing this issue is Fla. Stat. § 732.201.

This statute establishes that a surviving spouse of a person who dies domiciled in Florida has the right to an elective share of the decedent’s elective estate.

Florida law sets the elective share amount at 30% of the elective estate. See Fla. Stat. § 732.2065.

Timing is critical: in most cases, the election must be filed by the earlier of (a) 6 months after service of the Notice of Administration on the spouse (or their representative) or (b) 2 years after death. See Fla. Stat. § 732.2135.

Why You Should Speak with an Attorney

While the statutes provide the general rule, applying them to your specific probate case is rarely simple. Defending an elective share claim often turns on details that can significantly change the outcome, including:

• Strict Deadlines: Even a strong claim can be barred if the election is not filed on time under Fla. Stat. § 732.2135. Separate disputes about elective-share-related property rights can also be subject to a 2-year bar. See Fla. Stat. § 732.2211.
• Burden of Proof: Many defenses are fact-driven—what was served, when it was served, what documents exist, and whether the spouse (or someone acting for them) had legal authority to file the election.
• Exceptions and Asset Classification: A major “defense” is often not eliminating the elective share, but challenging what gets counted in the elective estate and how it’s valued. This can involve non-probate assets and ownership structures that require careful legal analysis.

Because elective share disputes can affect beneficiaries, fiduciaries, and even recipients of non-probate transfers, a misstep can trigger expensive litigation, delay distributions, or create personal liability issues for the personal representative.

If you want background on how ownership and transfers can affect inheritance outcomes, you may find these helpful: Tenancy by the entirety and what passes automatically and how joint ownership between spouses can change inheritance.

Get Connected with a Florida Attorney

Do not leave your legal outcome to chance. We can connect you with a pre-screened Probate attorney in Florida to discuss your specific facts and options.

Find a Florida Attorney Now

Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.