When a person passes away in Florida, surviving spouses and adult children often expect to inherit portions of the estate. However, things can become complicated when a decedent's will or estate plan heavily favors one party over the other. This often leads to elective share litigation, a legal battle between the surviving spouse and the decedent's adult children over what share of the estate each is entitled to under Florida law.

Understanding Florida's elective share rules is essential to protecting your rights. A Florida probate litigation attorney can help navigate these complex disputes and ensure that your interests are properly represented in court.

What Is the Elective Share in Florida?

Florida law protects surviving spouses through a concept known as the elective share, codified under Florida Statutes §732.201–732.2155. The elective share guarantees that a surviving spouse is entitled to 30% of the decedent's elective estate, regardless of what the will says.

The elective estate includes:

• Probate assets (property passing under the will)

• Certain non-probate assets (such as revocable trusts, joint accounts, or pay-on-death accounts)

• Property transferred shortly before death in some cases

This law prevents individuals from completely disinheriting their surviving spouses through a will or trust.

Why Elective Share Litigation Happens

Elective share disputes typically arise when adult children from a prior marriage believe that the surviving spouse is taking more than their fair share—or when the spouse feels wrongfully excluded or undercompensated. These disputes often involve emotionally charged family dynamics and significant financial stakes.

Common reasons elective share litigation occurs include:

1. Second Marriages and Blended Families
   The decedent may have left most of their assets to children from a prior marriage, unintentionally shortchanging the surviving spouse.

2. Disinheritance or Unequal Distribution
   A surviving spouse may discover that they were left out of the will entirely or given a smaller inheritance than Florida law allows.

3. Disputes Over Asset Valuation
   The value of the elective estate can be difficult to determine, especially when assets include trusts, real estate, or business interests.

4. Creditor Claims and Estate Expenses
   Determining whether debts or expenses reduce the elective share often sparks additional litigation.

How the Elective Share Works in Practice

When a surviving spouse feels they have not received their lawful share, they must file an election to take the elective share. This must be done within six months after receiving notice of administration (or within two years of death, whichever is earlier).

Once the election is filed, the probate court begins determining:

• The value of the elective estate.

• Whether the spouse has already received qualifying assets (such as joint property or retirement accounts).

• How much, if anything, must be distributed to the spouse to reach the 30% threshold.

When adult children object to the election or dispute the valuation of certain assets, the case can escalate into formal probate litigation.

Spouse vs. Adult Children: Common Litigation

Elderly couple sitting together, reflecting trust and companionship.

Issues

1. Disputes Over Trusts and Non-Probate Assets

Many high-value assets are held in revocable or irrevocable trusts. The surviving spouse may argue that those assets shouldn't count toward the elective estate, while the children insists they should.

2. Claims of Undue Influence or Lack of Capacity

Sometimes, children argue that the surviving spouse used undue influence to alter the estate plan in their favor. In other cases, the spouse may claim the decedent lacked testamentary capacity when making the will.

3. Homestead Property Disputes

Florida's homestead laws grant the surviving spouse life estate rights (or a half interest, if they elect) in the marital home. Disputes often arise over whether the home counts toward the elective share or should be treated separately.

4. Timing and Procedural Errors

Failure to properly file an elective share election or follow court procedures can invalidate a spouse's claim. Litigation may then focus on whether the delay was excusable.

How a Florida Probate Litigation Attorney Can Help

Elective share disputes require both technical legal knowledge and sensitivity to family relationships. A Florida probate litigation attorney can:

• Analyze the estate's structure and calculate the elective share.

• Represent the spouse or heirs in court proceedings.

• Challenge or defend against claims of undue influence or improper asset inclusion.

• Negotiate settlements to avoid prolonged litigation.

These cases often involve interpreting trusts, prenuptial agreements, and estate planning documents, which require an experienced legal hand.

Final Thoughts

Elective share litigation in Florida often pits a surviving spouse against adult children, creating both legal and emotional challenges. Florida law ensures that surviving spouses cannot be completely disinherited, but determining what counts toward their 30% elective share can become contentious.

If you are involved in an elective share dispute, consulting an experienced Florida probate litigation attorney is essential. The right attorney will protect your rights, clarify complex financial issues, and work toward a resolution that honors both the law and your loved one's legacy.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship between you and Gold Legacy Law. For legal advice regarding your personal situation, please contact our office to schedule a consultation.