The Florida Spousal Elective Share
Under Florida Statute § 732.201, a surviving spouse has an absolute statutory right to elect to receive a 30% share of the decedent's "Elective Estate," regardless of the terms of the decedent's last will and testament.
The Augmented Elective Estate Concept
Crucially for fiduciary accounting, the elective estate is much broader than the probate estate. Pursuant to Fla. Stat. § 732.2035, the elective estate includes:
- The decedent's probate estate;
- Revocable living trusts;
- Jointly held bank accounts and real estate with rights of survivorship;
- Payable-on-death (POD) and transfer-on-death (TOD) accounts;
- Net cash surrender value of life insurance policies;
- Certain gifts made within 1 year of death.
Fiduciary Accounting & Contribution Order
When an elective share is exercised, the personal representative must prepare a specialized fiduciary accounting showing the satisfaction order under Fla. Stat. § 732.2075. Assets passing to the spouse abate last, while other testamentary devises abate proportionally to fund the 30% spousal entitlement.