elective share

Case Study In 1999 the Florida legislature enacted a major change in the state's elective share statute. Prior to the legislation that became effective in October 2001, a surviving spouse could elect to take 30% of the decedent's probate estate property. Not only was the percentage share among the smallest of any state in the country, but the base was narrowly defined to include only probate estate property (assets in the decedent's name alone). The limited base allowed insurance policies, assets in a living trust, and assets held jointly with someone other than the surviving spouse to pass outside probate and escape the elective share. Under the law it was fairly easy for someone to completely disinherit a spouse. The definition of elective share was broadened to include probate property plus other assets such as the decedent's ownership interest in property, jointly titled bank accounts and securities, retirement and pension plans, and the cash surrender value of life insurance policies. While the legislation helped offset some of the unfairness of the old law, it also created new problems for some Florida residents, including those who had been married several times with children from prior marriages.