Florida Estate Planning & Spousal Rights

Can You Disinherit a Spouse in Florida?
The 30% Elective Share Explained

Florida is one of the most protective states in the nation for surviving spouses. No matter what your will says, your spouse can claim 30% of a broad pool of your assets — unless they have validly waived that right. Here is how it works.

By Arthur Simpson, Esq. Florida Estate Planning Attorney Last Updated: May 2026

Many people assume that a will gives them complete control over who inherits their property. In Florida, that is not true when it comes to a spouse. Florida law gives a surviving spouse a powerful statutory right called the elective share — the right to claim a fixed percentage of the deceased spouse's estate even if the will or trust leaves them out entirely.

This protection exists to prevent one spouse from being financially abandoned at death. Understanding it is essential for blended families, second marriages, and anyone whose estate plan does not leave everything to their spouse.

What Is the Florida Elective Share?

The elective share is the surviving spouse's right to receive 30% of the elective estate (F.S. § 732.2065), regardless of what the deceased spouse's will or revocable trust provides. The spouse must affirmatively elect to take this share by filing with the probate court; it is not automatic.

The Core Rule A surviving spouse in Florida is entitled to 30% of the elective estate — even if disinherited by the will. The elective estate is far broader than the probate estate, which is what makes Florida's protection so difficult to plan around without a valid marital agreement.

What Counts as the "Elective Estate"?

This is where Florida's law has real teeth. The elective estate (F.S. § 732.2035) is deliberately broad so that a spouse cannot be disinherited simply by moving assets out of probate. It generally includes:

Because so many "probate-avoidance" assets are pulled back into the elective estate, the common strategy of titling everything in a trust or in joint name does not defeat a spouse's elective share.

The Election Deadline

The surviving spouse must file the election within a strict window. Under F.S. § 732.2135, the deadline is the earlier of:

Missing the deadline generally waives the right. The spouse (or their attorney or guardian) must act promptly.

How a Spouse Can Be Validly Disinherited

The only reliable way to limit or eliminate a spouse's elective share is a valid marital agreement — a prenuptial or postnuptial agreement in which the spouse knowingly waives these rights (F.S. § 732.702).

Agreement TypeWhen SignedFinancial Disclosure
Prenuptial agreementBefore marriageFull disclosure not strictly required for waiver, but strongly recommended
Postnuptial agreementAfter marriageFair and reasonable financial disclosure generally required

A valid waiver can give up not only the elective share, but also homestead rights, the intestate share, family allowance, and the right to serve as personal representative — though each must be addressed clearly in the agreement.

⚠ Second Marriages and Blended Families The elective share is the single most common reason estate plans fail in second marriages. A spouse who intends to leave most of their assets to children from a prior marriage cannot do so reliably without a marital agreement or carefully structured plan. A homemade will alone will not protect that intent.

What the Elective Share Does Not Override

The elective share is separate from — and in addition to — other spousal protections under Florida law, including:

Frequently Asked Questions

Can I disinherit my spouse in my Florida will?
Not effectively. Even if your will leaves your spouse nothing, Florida law lets them claim an elective share of 30% of your elective estate (F.S. § 732.2065). The only way to truly limit this is a valid prenuptial or postnuptial agreement in which your spouse waives the right.
How much can a surviving spouse claim in Florida?
A surviving spouse can elect to take 30% of the elective estate. The elective estate is broad — it includes probate assets, revocable trust property, joint accounts, payable-on-death accounts, certain life insurance and retirement amounts, and some recent gifts.
Does putting assets in a trust avoid the elective share?
No. Revocable trust assets are specifically included in the elective estate under F.S. § 732.2035. Moving assets into a trust, into joint accounts, or into payable-on-death accounts does not defeat a spouse's elective share.
What is the deadline to claim the elective share?
The election must be filed by the earlier of six months after the spouse is served with the notice of administration, or two years after the date of death (F.S. § 732.2135). Missing the deadline usually waives the right.
Can a prenup waive Florida spousal rights?
Yes. A valid prenuptial or postnuptial agreement can waive the elective share, homestead rights, and other spousal protections under F.S. § 732.702. The waiver must be in writing and signed by the waiving spouse; postnuptial waivers generally require fair financial disclosure.

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This article is for general informational purposes and does not constitute legal advice. Spousal rights and marital agreements are highly fact-specific. Consult a licensed Florida attorney regarding your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida.