Previously, this blog has discussed what wills are, as well as what happens if someone dies without a last will and testament. There are other special cases as well, however, including what is called an “elective share” or sometimes a “spousal share.” As a public policy matter, elective shares are meant to prevent the intentional or accidental disinheriting of a spouse (and sometimes children) by a person’s last will and testament.

Basically, the elective share allows a surviving spouse to either take what he or she is given in the last will and testament, or to elect to take a set amount from the estate. This amount in Florida is set at 30 percent of the deceased person’s estate.

It is important to note that this includes both probate and non-probate assets. This means not only the property covered in the will, but any life insurance policies or “pay on death” interests in securities and other investments. Further, the spouse may be able to take an interest in any real estate that has been designated “homestead” property. The elective share may also include certain exempt property that would normally be used to pay the estate’s creditors.

While the law prevents a person from completely disinheriting a spouse, the spouse can legally waive his or her right to the elective share in a properly executed pre- or post-nuptial agreement. Also, persons other than those entitled to an elective share can be disinherited without the will having to give them a nominal gift. The laws and regulations that apply to elective shares can become quite complicated, so it may behoove anyone who believes he or she may be entitled to exercise this right to contact an experienced estate planning attorney.

Source: FloridaBar.org, “WHAT ARE THE RIGHTS OF THE DECEDENT’S SURVIVING FAMILY?,” accessed on Jan. 12, 2014