When one spouse dies, the surviving spouse can choose to take what is called an elective share. The surviving spouse can elect the to take the elective share regardless of whether the deceased spouse had an estate plan which included the surviving spouse.

The elective share of the probate estate is 30% of the deceased spouse’s “augmented estate”. An augmented estate generally includes i) the deceased spouse’s probate estate, ii) all other non probate property owned by the deceased spouse on death (i.e. business interests, partnership interests, pay on death accounts, transfer on death accounts, trust assets, joint tenancy properties, pension or other retirement benefits, etc.), and iii) certain property transferred within one year of the deceased spouse’s death.

An election for elective share must be made within 6 months of receipt of a notice of administration or within six months upon the date a waiver of notice of administration is signed. The elective share is in addition to any rights for homestead property, exempt property and family allowance, but, as discussed above, is not in addition to intestate share. Florida’s probate code provides extensive rules and procedures governing elective estates which must be complied with from the time an election is filed until the time of distribution to the spouse.

Ms. Rountree has dealt with a variety of spousal right issues in probate proceedings. She has successfully litigated and settled elective share, homestead, and family allowance disputes on behalf of her clients. Shannon L. Rountree, P.A. offers services to represent spouses and fiduciaries in connection with intestate share, elective share, homestead, family allowance, and exempt property claims.

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