In Florida, a surviving spouse is entitled to receive a portion of a deceased spouse’s estate according to a formula established by the Florida Statutes, based on the probate and non-probate assets of the deceased, which is called an elective share and totals 30% of the elective estate.
If the surviving spouse is not satisfied with the inheritance created by his or her deceased spouse’s estate plan, then the surviving spouse can instead take the Florida elective share, provided that the “election” is made within the time limits established by Florida law.
The surviving spouse has 6 months from the receipt of the estate’s notice of administration to make the Florida elective share election.
Despite any other provision of this Trust Agreement, if my wife or her designated representative elects the Elective Share in my estate, any trust created under this Trust and not qualifying for the federal marital deduction in which my wife is a beneficiary will be divided into two parts, with the least amount of that trust as is needed to satisfy the balance of the Elective Share unpaid by other sources under Section 732.2075 of the Florida Statutes being held as a separate trust (the “Elective Share Trust”) and administered so as to qualify under Section 732.2025 of the Florida Statutes (including the right for my wife to require the Trustee to make the trust property productive or to convert it within a reasonable time). Unless the original trust already provides for a qualifying invasion power or a qualifying power of appointment for my wife, the Personal Representative in its discretion may elect to create an invasion power for the Elective Share Trust for purposes of valuation under Section 732.2095 of the Florida Statutes. If an invasion power is created, the Personal Representative shall designate that such a power is to apply by filing a notice with my wife and in the probate court within 6 months after the election by my wife of the Elective Share.