By: Seton T. Hengesbach, Esq.

Spousal rights are engrained in Florida law. One powerful right is Florida’s Elective Share (Fla. Stat. Sec. 732.201). This law provides that when your spouse dies you are entitled to at least thirty (30%) percent of their estate. 

While this may seem simple, it is not. 

The first step is determining the value of the spouse’s estate (also called the elective estate). This includes assets that are part of the probate estate as well as assets that pass outside of probate (i.e. life insurance proceeds).

Once the value of the elective estate is determined, the elective share (30% of the elective estate) is calculated and paid to the surviving spouse. 

For surviving spouses, it is important to know that the right to an elective share is not automatic. Rather, the surviving spouse must request the elective share. To do this, the surviving spouse must timely file a notice with the court within six months of a probate being opened but no later than two years after the spouse’s death. 

If not timely elected, the estate is not obligated to pay the elective share to the surviving spouse. 

It is also important to understand that an elective share is not always the surviving spouse’s best remedy under Florida law. In some cases other spousal rights can result in the surviving spouse receiving a larger portion of the estate. Likewise, the right to an elective share can be waived in a pre or post nuptial agreement. 

The attorneys at Hengesbach & Hengesbach have extensive experience with elective share claims. If your spouse recently passed and you are unsure if your rights do not hesitate to contact us. For more information, feel free to visit our website at or email me at