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The surviving spouse of a person who dies domiciled in Florida has the right to claim a portion of the deceased spouse's estate known as the "elective share." The elective share is an amount equal to 30% of the elective estate. A spouse may waive the right to the elective share by a marital agreement entered either before or after marriage. The current elective share law, which applies to the estates of persons dying on or after October 1, 2001, significantly expanded the types of property which are subject to the elective share and provides options for satisfying the elective share by transfers in trust.

Article X Section 4(c) of the Florida Constitution limits who can receive Homestead property upon the death of an owner if he or she is survived by a spouse or a minor child.  A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Florida.

If a surviving spouse is left a life estate, he or she has six months from the decedent’s date of death to make an election under Florida Statutes Section 723.401 to take a one-half interest in the Homestead as a tenant in common.  This is a very important election, because in Florida, owning a life estate can often be more costly to maintain than the benefit is worth, given the high cost of ownership of real estate in Florida as a result of property taxes, insurance, and homeowner association dues.  By making the election a spouse can force the sale of the property and receive 50% of the sales proceeds.  Homestead rights are protected by the Florida Constitution and are in addition to any elective share, family allowance, or exempt property rights discussed below.   No notice of the tenant in common election right needs to be given to the surviving spouse, making this six month deadline easy to miss.

You should draft your will with this information in mind.