Florida Elective Share: A Surviving Spouse's Rights

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published September 28, 2026. Last reviewed September 28, 2026.

This guide cites part II and part IV of chapter 732 of the Florida Statutes, the elective share and the family protections, plus the intestate rule for a spouse. Nothing here is advice about a particular family; it describes what the statutes provide.

The elective share

The surviving spouse of a person who dies domiciled in Florida has the right to a share of the decedent's elective estate, called the elective share (section 732.201). Making the election does not reduce what the spouse would otherwise receive, and the spouse is not treated as having predeceased the decedent. The amount is 30 percent of the elective estate (section 732.2065). What goes into the elective estate is defined in the sections that follow section 732.2035 and is not summarized here; the point is that the base is broader than the probate estate alone.

The deadline to elect

The election must be filed on or before the earlier of two dates: 6 months after the date the notice of administration is served on the surviving spouse (or on the spouse's attorney in fact or guardian), or 2 years after the decedent's death (section 732.2135). Within that period, or within 40 days after a proceeding affecting the amount ends, but never more than 2 years after death, the spouse may petition for an extension, which the court may grant for good cause. An election may be withdrawn within 8 months after death and before the court's order of contribution. Because the clock starts with the notice of administration, the personal representative's duty to serve that notice promptly on the surviving spouse under section 733.212 matters to the spouse as much as to the estate.

The homestead

Two sections work together. Section 732.4015 restates the constitutional limit: the homestead may not be devised if the owner is survived by a spouse or a minor child, except to the spouse when there is no minor child, and the rule applies to a homestead held in a revocable trust. Section 732.401 then says what happens when the homestead is not validly devised: it descends like other intestate property, but if the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate in the homestead with a vested remainder to the descendants. In place of the life estate the spouse may elect an undivided one half interest as a tenant in common, with the other half vesting in the descendants. That election must be made within 6 months after death and during the spouse's lifetime, is irrevocable once made, and is made by recording a notice of election with the legal description in the official records of the county where the homestead is.

Exempt property

If the decedent was domiciled in Florida, the surviving spouse, or the children if there is no spouse, has the right to exempt property (section 732.402): household furniture, furnishings and appliances in the decedent's usual home up to a net value of $20,000 at death; two motor vehicles, each under 15,000 pounds gross weight, held in the decedent's name and regularly used by the decedent or the immediate family; qualified tuition program accounts under section 529 of the Internal Revenue Code, including Florida Prepaid contracts; and certain death benefits paid under section 112.1915. Exempt property is free of all claims against the estate except perfected security interests, and is in addition to the homestead, the other statutory entitlements and whatever passes by will or intestacy. Property specifically devised to someone else is not included. The right is waived unless a petition to determine exempt property is filed within 4 months after service of the notice of administration, or 40 days after the end of a proceeding about the will's validity, whichever is later.

The family allowance

In addition to the homestead and the statutory entitlements, the surviving spouse and the lineal heirs the decedent was supporting or obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration (section 732.403). The court may order it as a lump sum or in periodic installments, and the total may not exceed $18,000. It is paid to the surviving spouse for the use of the spouse and the dependent heirs, and it is not charged against any other share passing to the spouse or the dependents unless the will provides otherwise.

If there is no will

Section 732.102 gives the surviving spouse the entire intestate estate when the decedent left no surviving descendant, and also when every surviving descendant of the decedent is a descendant of the spouse and the spouse has no other descendant. The spouse takes one half when the decedent left a descendant who is not the spouse's, or when all the decedent's descendants are also the spouse's but the spouse has a descendant who is not the decedent's. The rest passes to the descendants, per stirpes.

Community property from another state

Sections 732.216 to 732.228 are titled the Florida Uniform Disposition of Community Property Rights at Death Act. Its rules are not summarized here; a couple who moved to Florida from a community property state such as Texas should have that act reviewed with their plan.

What this means for a married couple's trust

A living trust does not remove these rights. The elective share reaches an elective estate that is broader than the probate estate, the homestead restriction applies to a homestead in a revocable trust by the terms of section 732.4015, and the exempt property and family allowance come out of the estate. What a joint trust does is keep the couple's property out of probate and set out, in writing, what each spouse receives, so that the statutory floors are never needed. The Florida Complete Estate Plan for a married couple is built as a joint revocable trust with a pour-over will and personal documents for each spouse; see the Florida living trust page.