When a married person dies in Florida, the surviving spouse has rights that a will cannot eliminate. The most important is the elective share. In estates emerging from contested guardianships, the spouse is frequently one of the combatants, and the elective share becomes the central probate battleground. This page explains the right and how guardianship history shapes it.
The 30 Percent Elective Share
Under Florida Statute 732.2065, a surviving spouse may elect to take 30 percent of the elective estate instead of, or in addition to, what the will provides. The election protects a spouse who was disinherited or left less than the statutory minimum. The right exists regardless of how the will reads.
What Counts in the Elective Estate
The elective estate is broader than the probate estate. It can include certain revocable trusts, jointly held property, pay-on-death accounts, and some transfers made within a year of death. Transfers a guardian made during a contested guardianship may be pulled into the elective estate calculation, which is why the guardianship accounting is so important.
How Guardianship Contests Reshape the Claim
A spouse who fought the guardianship may allege that adult children diverted assets while the ward was incapacitated. Those allegations directly affect the size of the elective estate and may support claims to claw back transfers. Conversely, children may argue the spouse waived rights or that a transfer was a legitimate court-approved guardianship expenditure.
Deadlines and Procedure
The election must generally be filed by the earlier of six months after service of the notice of administration or two years after the date of death. Missing the deadline usually forfeits the right. Because post-guardianship estates often involve delayed inventories, we calendar these dates carefully.
Waivers and Prenuptial Agreements
A spouse can waive the elective share in a valid prenuptial or postnuptial agreement under Florida Statute 732.702. The validity of such waivers, including questions of capacity at signing, often overlaps with the same incapacity issues litigated in the guardianship.
Consult a Florida Attorney
The elective share involves complex valuation and strict deadlines. This page is general information and not legal advice. A surviving spouse or personal representative should consult a licensed Florida attorney promptly, especially when a contested guardianship affects the elective estate.
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