What a Florida Prenup Waives at Death: 30%, $20,000 and $18,000
Quick Answer
What does a surviving spouse get in Florida if there is no waiver? Three separate entitlements, from three separate statutes, that stack: 30 percent of the elective estate under Fla. Stat. § 732.2065, up to $20,000 in exempt household property under § 732.402, and up to $18,000 in family allowance under § 732.403. The election runs on a clock set by § 732.2135 — the earlier of 6 months after service of the notice of administration or 2 years after death. A premarital agreement drafted only to the divorce statute waives none of it.
Three Claims, Three Statutes, One Estate
Most couples negotiating a prenuptial agreement are negotiating about divorce. The Florida Probate Code gives a surviving spouse a different and independent set of claims that arrive only at death, and they are not addressed anywhere in § 61.079, the premarital agreement statute.
They are worth setting out as figures, because that is how they are actually written.
1. Thirty Percent of the Elective Estate (§ 732.2065)
Section 732.2065 is one sentence: “The elective share is an amount equal to 30 percent of the elective estate.”
The number that matters is not the percentage but what it is 30 percent of. Under § 732.2035 the elective estate reaches well past the probate estate — revocable trusts, jointly held property, payable-on-death accounts, retirement plans and the net cash surrender value of life insurance are all pulled in. An estate plan built to avoid probate does not avoid the elective share. The full breakdown sits on our page for § 732.2065.
2. Twenty Thousand Dollars in Exempt Property (§ 732.402)
Section 732.402 sets aside exempt property for the surviving spouse before creditors and before the residuary estate. It includes household furniture, furnishings and appliances up to a net value of $20,000, and two motor vehicles — each under a gross weight of 15,000 pounds — held in the decedent’s name and regularly used by the decedent or members of the immediate family.
This is a separate entitlement. It is not counted against the 30 percent; it comes off the top.
3. Eighteen Thousand Dollars in Family Allowance (§ 732.403)
Section 732.403 permits the court to allow a family allowance for the surviving spouse and lineal heirs the decedent was supporting, capped at $18,000. It is paid during administration, and it too is separate from both the elective share and exempt property.
Stated together: a surviving spouse who has waived nothing may claim 30 percent of a broadly defined estate, plus up to $20,000 of household property, plus up to $18,000 of allowance.
The Clock: 6 Months, 2 Years, 8 Months
Section 732.2135(1) requires the election to 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 the date that is 2 years after the date of the decedent’s death.”
Whichever comes first. And an election once made is not irreversible: the same section addresses withdrawal, which must occur within 8 months after the decedent’s death and before the court’s order of contribution.
Three deadlines, all running from events the surviving spouse does not control.
The Waiver That Closes All Three (§ 732.702)
These rights are waivable. Section 732.702(1) allows a spouse or prospective spouse to waive the elective share, exempt property, family allowance and the rest “wholly or partly, before or after marriage.”
The formality is stricter than the one couples usually have in mind. The waiver must be signed by the waiving party in the presence of two subscribing witnesses. Section 61.079(3), by contrast, asks only that a premarital agreement be “in writing and signed by both parties.” A prenup drafted to the divorce statute alone can satisfy § 61.079 completely and still fail § 732.702.
Under § 732.702(2), fair disclosure of the estate is required only where the waiver is executed after marriage. A waiver signed before the wedding does not carry that disclosure requirement.
Who This Actually Changes the Answer For
Second marriages where each spouse intends their own children to inherit. Couples where one spouse holds a business or a family interest that was never meant to pass to a new spouse. Couples with assets in more than one country, where a foreign will may not anticipate a Florida elective share at all.
In each case a will saying the right thing is not enough on its own, because the surviving spouse can elect against it.
Frequently Asked Questions
Does a Florida prenup automatically waive inheritance rights?
No. § 61.079 governs premarital agreements for divorce purposes. Waiving spousal death rights requires a waiver meeting the § 732.702 formalities, including two subscribing witnesses.
Do the $20,000 and $18,000 come out of the 30 percent?
No. Exempt property under § 732.402 and family allowance under § 732.403 are separate entitlements from the elective share under § 732.2065.
How long does a surviving spouse have to elect?
The earlier of 6 months after service of the notice of administration or 2 years after death, under § 732.2135(1).
Can an election be withdrawn?
§ 732.2135 provides for withdrawal within 8 months after the decedent’s death and before the order of contribution.