Elective Share or Intestate Share? Why Florida Surviving Spouses Must Choose Carefully

When a spouse passes away in Florida, the surviving spouse is not left without recourse — even if the will says otherwise. Under Florida Statute §732.201, a surviving spouse has the right to claim a share of the deceased spouse's estate regardless of what the will provides. But exercising that right comes with a critical decision that many families overlook until it is too late.

What the Statute Actually Says

Florida law provides a surviving spouse with two distinct options when the deceased spouse dies leaving a valid will:

• Take under the will — accept whatever the will provides, whether that is a specific bequest, a share of the estate, or even nothing at all.
  
• Elect against the will — claim a statutory share of the estate, overriding the will's provisions

This election — formally known as the elective share — entitles the surviving spouse to 30% of the elective estate, which includes not just probate assets but a broad range of non-probate transfers as well. The reach of this calculation often surprises families.

The Decision Has a Hard Deadline

The election is not automatic. A surviving spouse must actively file a notice of election, and Florida law imposes a strict time limit to do so. Miss the deadline, and the right is permanently waived. A court can extend the deadline for good cause, but only if the spouse asks before it expires, and never beyond two years after the death. There are no extensions for confusion, grief, or poor legal advice.

This is not a theoretical risk. Families navigating the probate process while managing loss frequently miss procedural deadlines that carry permanent consequences.

Why the Choice Is More Complex Than It AppearsThe Stakes Are Too High to Wait

Choosing between the will and the elective share is rarely straightforward. Several factors must be carefully evaluated:

• What the will actually provides — in some cases, the will is generous and electing against it produces a worse outcome
  
• Tax implications — the structure of how assets pass can have significant estate and income tax consequences
• Family dynamics — particularly in blended families, the decision can affect children from prior relationships and create lasting conflict

A surviving spouse who rushes this decision — or makes it without legal counsel — risks leaving substantial assets on the table or triggering unintended consequences that cannot be undone.

The Stakes Are Too High to Wait

Florida probate law does not pause for uncertainty. Once the election deadline passes, the surviving spouse's options are gone. Whether you are navigating the immediate aftermath of a spouse's death or planning ahead to understand your rights, this is not a matter to handle alone.

Contact TCB Legacy Law today at (954) 302-8989 for a comprehensive probate consultation. Our attorneys will evaluate your specific circumstances, explain your options clearly, and help you make the most informed decision possible — before the window closes.

In probate, timing and strategy are everything. Let us help you protect what you are entitled to.