Alternate Title
Fifty Years of Protecting the Surviving Spouse: The Origin and Evolution of Florida's Elective Share
Abstract
Currently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to take a share against all other heirs or beneficiaries of the decedent’s will, despite the decedent’s testamentary intent. In the past, Florida has lagged behind the Uniform Probate Code and other states in implementing changes to the elective share framework. However, by establishing an approximation system, that is, an elective share percentage that increases with marriage length, Florida’s elective share can more closely mirror the divorce law concept of equitable distribution and other areas of Florida’s public policy.
Recommended Citation
Flavia Argamasilla, Fifty Years of Protecting the Surviving Spouse: The Origin and Evolution of Florida's Elective Share, 20 FIU L. Rev. 727 (2025), https://doi.org/10.25148/lawrev.20.2.10.
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