Even long marriages can fall apart. Distance, conflict and estrangement can push a couple apart long before death. Hence, if your spouse passed away and left you out of their will, you may find yourself questioning your legal standing and available options.
Fortunately, Florida law protects you, even when your spouse attempts to disinherit you. That protection begins with understanding a fundamental right that Florida state law affords you.
You have the right to an elective share
This is because Florida law gives every surviving spouse a legal protection called an elective share. This provision entitles you to claim a portion of your late spouse’s estate, regardless of what their will states.
Florida established this statutory protection precisely for circumstances like yours. As long as you were legally married at the time of your spouse’s death, you can file for the elective share during probate. Estrangement does not extinguish that statutory right. Now that you know this right exists, the next step is understanding how much you can claim.
How much of the estate can you claim?
In fact, under state laws, you can claim up to 30% of your deceased spouse’s elective estate. Courts usually calculate the 30% based on the total value of qualifying assets, which often extends beyond what passes through probate alone.
Yet, knowing the percentage is only part of the equation. You also need to understand which assets constitute the elective estate.
Which assets are part of the elective estate?
That said, not all property your spouse owned will fall within the elective estate, but many asset types do qualify. Here is what Florida law typically includes:
- Probate assets: Property owned solely by the deceased that passes through the court process.
- Revocable trust assets: Property held in a trust that the deceased could change or cancel during their lifetime.
- Jointly held property: Assets the deceased shared with others, valued according to their ownership share.
- Select investment accounts: Bank and investment accounts labeled “Payable-on-Death” or “Transfer-on-Death.”
- Retirement accounts and life insurance: IRAs, 401(k)s, pensions and the net surrender value of life insurance policies.
The elective estate encompasses a broad range of assets, meaning your claim may be more substantial than you initially anticipated. With that in mind, knowing how to properly assert your rights during probate proceedings becomes essential.
Protect your marital rights during probate
When a will leaves you out entirely, the situation can feel overwhelming, but you do have legal recourse. Florida law preserves your rights as a surviving spouse and the elective share exists to ensure that a will alone cannot divest you of those rights.
The probate process can feel complex, but you do not have to navigate it without support. With the right guidance, you can gain clarity on your legal entitlements and protect your share of the estate.