Navigating the Nuances of Florida’s Elective Share with Trusts

When it comes to estate planning in Florida, the elective share law plays a crucial role in protecting surviving spouses from disinheritance. However, this law interacts with trusts in complex ways that many people may not fully understand. Let’s dive into the nuances of the elective share and how it relates to trusts in the Sunshine State.

What is the Elective Share?

Florida’s elective share law entitles a surviving spouse to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or trust stipulates. This law aims to prevent complete disinheritance and ensure financial security for the surviving spouse.

The Choice to Exercise

It’s crucial to understand that the elective share is not automatic. The surviving spouse must choose to exercise this right within specific time frames:

– Within 6 months of receiving notice of estate administration, or

– Within 2 years of the deceased spouse’s date of death, whichever comes first

This choice allows the surviving spouse to weigh their options and decide whether claiming the elective share would be more beneficial than accepting what they were given in the will or trust.

Trusts and the Elective Share

Many people mistakenly believe that placing assets in a revocable trust can circumvent the elective share. However, Florida law includes trust assets in the “elective estate”. This means that even if you’ve carefully crafted a trust to distribute your assets, your spouse may still have a claim to 30% of those assets through the elective share.

Waiving the Right to Elective Share

For those who wish to ensure their assets are distributed exactly as they’ve planned, there are ways to eliminate the right to an elective share:

1. Prenuptial or Postnuptial Agreements: A valid agreement can waive the right to an elective share. This is particularly common in second marriages where spouses want to protect inheritances for children from previous relationships.
2. Divorce: A final judgment of divorce terminates spousal inheritance rights, including the right to an elective share.
3. Waiver at Trust Creation: A spouse can sign a waiver of their elective share rights when a trust is created. This allows for more flexibility in estate planning and can be an option for couples who didn’t execute a prenuptial agreement.

It’s important to note that for any waiver to be valid, it must be executed voluntarily and with full knowledge of the rights being waived. Consulting with an experienced estate planning attorney is crucial to ensure that any waiver is properly drafted and executed to be enforceable under Florida law.

The Elective Share Process

If a surviving spouse decides to claim the elective share, they must navigate a specific legal process:

1. File an election with the probate court
2. The personal representative must notify all interested parties
3. Interested parties may file objections
4. The court determines entitlement and amount of the elective share
5. The personal representative collects and distributes the elective share

Implications for Estate Planning

Understanding the elective share law is crucial for effective estate planning in Florida. Here are some key considerations:

– Review and update your estate plan regularly, especially after major life events

– Consider using trusts strategically, understanding that they may not fully protect assets from elective share claims

– Discuss the implications of the elective share with your spouse and consider a prenuptial or postnuptial agreement if desired

– Consult with an experienced estate planning attorney to navigate these complex laws

At The Brammer Firm, we understand the intricacies of Florida’s elective share law and how it interacts with trusts and other estate planning tools. We’re here to help you create a comprehensive estate plan that aligns with your wishes while navigating the nuances of Florida law.

Remember, effective estate planning is about more than just distributing assets – it’s about ensuring your legacy is preserved and your loved ones are protected. Don’t leave your estate to chance. Contact The Brammer Firm today to discuss how we can help you navigate Florida’s elective share law and create an estate plan that works for you and your family.