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Spousal Inheritance and the Elective Share


When the legendary playwright William Shakespeare passed away it came to light that in his will, he left various items to his two children, his sister, and his sister’s children. But what is most talked about was what he left to his wife – or what he failed to bequest to her.

In regards to his wife of approximately 33 years, Shakespeare bequeathed her “my second best bed with the furniture.” What this means, why he did it, and the mystery of who exactly had the first best bed, then, have all been hotly discussed topics over the past four hundred and some odd years. But one theory that would make sense then, and makes sense now, is that it is quite difficult to totally disinherit a spouse. The laws at the time would have made his will defective if he had totally ignored his wife and left her nothing. By leaving her the second best bed, Shakespeare’s wife could not claim that the will was defective. She was, instead, essentially disinherited and – arguably – insulted, to boot.

Much like in the English law of yore, Florida law has developed to give certain inheritance protections to spouses. This article will discuss what Florida spouses are generally entitled to upon the death of a spouse, and various nuances in the law.

Florida’s Four Rights 

It is important to start off by saying that there are always going to be exceptions to the rule. While Florida law has developed to generally provide the following protections, that presumption can be waived by another marital contract – such as a valid pre-nuptial or post-nuptial agreement that waives rights a spouse would otherwise be entitled to. If you find yourself unsure of how your prenuptial or postnuptial agreement may affect your rights to your deceased spouse’s estate, an experienced attorney can help.

Generally speaking, barring a valid pre-nuptial or post-nuptial agreement, a decedent’s surviving spouse will be entitled to four general rights:

  1. Rights to the homestead (usually an ability to remain on the homestead property for life or, in some circumstances where other children are involved, half of the value of the homestead.)
  2. Exempt property (generally, furniture, cars, etc.)
  3. Family allowance
  4. Elective share

 What is the “Elective Share”? 

Florida generally does not allow the total disinheritance of one’s spouse. This is to ensure that a spouse is not left high and dry should their spouse pre-decease them, which could leave the Florida government with no choice but to support the individual instead as an indigent or a ward of the state.

A spouse’s right to their spouse’s estate is called the spouse’s elective share. Florida law states that the elective share is thirty percent of the decedent’s estate. This elective share includes not only the probate estate and assets, but EVERY asset that the decedent owned (generally known as the “augmented estate”) This gives the spouse access to, for example, assets held in revocable living trusts.

Contact Suncoast Civil Law 

Contact the experienced Sarasota wills and probate lawyers at Suncoast Civil Law to discuss any questions you might have about building your own estate plan, or challenging an unfair development in your probate matter.