The Florida Elective Share: Fla. Stat. § 732.2065 (2026)
Quick Answer
How much is the elective share in Florida? Fla. Stat. § 732.2065 states it in one sentence: “The elective share is an amount equal to 30 percent of the elective estate.” The right belongs to the surviving spouse of a person who died domiciled in Florida under § 732.201, the elective estate is defined by § 732.2035, and the election must be filed within the deadline in § 732.2135. It can be waived in advance under § 732.702.
What Does Fla. Stat. § 732.2065 Govern?
Section 732.2065 does one thing: it fixes the size of the elective share. It does not say who may claim it, what property counts toward it, or when the claim must be made — those are separate sections of the Probate Code. Read on its own, § 732.2065 answers only the arithmetic question.
The elective share is the reason a Florida will cannot simply disinherit a spouse. However the estate plan is drafted, a surviving spouse may elect against it and take a statutory percentage instead.
§ 732.2065 — Exact Text
“The elective share is an amount equal to 30 percent of the elective estate.”
That is the entire operative provision. Thirty percent, of the elective estate — not thirty percent of the probate estate, which is a materially different and usually much smaller number.
Who Has the Right to Elect? (§ 732.201)
Under § 732.201, “The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.”
Two conditions carry the weight. The claimant must be a surviving spouse, and the decedent must have died domiciled in Florida. Domicile, not property location, is the trigger for the right itself.
What Property Enters the Elective Estate? (§ 732.2035)
This is where the 30 percent becomes larger than most people expect. § 732.2035 pulls the following into the elective estate:
- The decedent’s probate estate.
- The decedent’s interest in property constituting protected homestead.
- Ownership interests in accounts or securities registered “Pay On Death,” “Transfer On Death,” “In Trust For,” or in co-ownership with right of survivorship.
- The decedent’s fractional interest in property held in joint tenancy with right of survivorship or tenancy by the entirety.
- Property transferred by the decedent to the extent it remained revocable by the decedent.
- Property transferred over which the decedent retained certain rights to income, principal or discretionary distribution.
- The decedent’s beneficial interest in the net cash surrender value of life insurance on the decedent’s life.
- Amounts payable under public or private pension, retirement or deferred compensation plans.
- Property transferred during the one-year period preceding death resulting from termination of certain rights or interests.
- Property transferred in satisfaction of the elective share.
The practical effect: revocable trusts, jointly held property, payable-on-death accounts, retirement plans and life insurance cash value are all reachable. An estate plan built to avoid probate does not avoid the elective share.
What Is the Deadline to Elect? (§ 732.2135)
Section 732.2135(1) sets the limit: the election must be filed “on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.”
Whichever comes first. Six months from service of the notice of administration, or two years from death. The section is titled “Time of election; extensions; withdrawal,” so extensions and withdrawal are addressed there as well.
How Is the Elective Share Waived? (§ 732.702)
The elective share is first on the list of rights a spouse may waive under § 732.702(1), “wholly or partly, before or after marriage.”
The formality is what catches people. The waiver must be signed by the waiving party “in the presence of two subscribing witnesses” — a stricter standard than § 61.079(3), which asks only for a signed writing. And under § 732.702(2), fair disclosure of the estate is required only where the waiver is executed after marriage.
Why the Elective Share Matters in a Prenuptial Agreement
Most couples asking about a prenup are thinking about divorce. The elective share is the reason the same document has to think about death.
Consider a second marriage where each spouse intends their own children to inherit. A will saying exactly that is not enough on its own: the surviving spouse can elect against it and take 30 percent of an elective estate that includes the trust, the joint accounts and the retirement plans. Only a waiver meeting the § 732.702 formalities closes that route.
That is why a marital agreement drafted only to the divorce statute leaves half the plan undone.
Amendment History of § 732.2065
History: s. 15, ch. 75-220; s. 1, ch. 81-27; s. 6, ch. 99-343. The section was formerly designated s. 732.207.
Older materials and forms may still cite s. 732.207. They are referring to the same provision under its previous number.
Frequently Asked Questions
How much is the Florida elective share?
Thirty percent of the elective estate, under § 732.2065.
Is the elective share 30 percent of the probate estate?
No. It is 30 percent of the elective estate, which § 732.2035 defines to include the probate estate plus homestead, revocable trust property, joint and payable-on-death accounts, retirement plans and life insurance cash value, among others.
Can a will disinherit a spouse in Florida?
Not by itself. The surviving spouse may elect against the will and take the elective share unless the right was validly waived under § 732.702.
What is the deadline to claim the elective share?
The earlier of six months after service of the notice of administration, or two years after the date of death, under § 732.2135(1).
Does the elective share apply if the decedent lived in another state?
Section 732.201 gives the right to the surviving spouse of a person who dies domiciled in Florida. Domicile is the trigger.
Can a prenup waive the elective share?
Yes, under § 732.702, provided the waiver is signed before two subscribing witnesses. Disclosure is required only where the waiver is signed after marriage.