Marriage, Death, and the Spousal Elective Share in Probate

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October 24, 2024

The phrase "til Death do you part" is not just an expression of the lifelong commitment of a wedding vow. In fact, it is an accurate approximation of the legal boundaries of a marriage. A marriage, very much like a business or other legal partnership agreement, exists as long as the two people involved are both living and ceases to exist upon the death of one of the spouses. However, just because the marriage itself dissolves upon the death of one spouse, it doesn't mean that all the rights of the surviving spouse cease to exist. And this is where a concept known as a "Spousal Elective Share" is useful to understand in probate proceedings. Florida Statutes define the "Right to elective share" of a surviving spouse as 30% of the total value of all assets of an estate. This may seem strange, as most would think that a person's surviving spouse is entitled to all or at the very least half of all assets of their deceased spouse, but that is where the "elective" part of this concept comes into play.

If a person dies while married and has, for example, a will in place that grants specific assets, let's say a vacation house to their son and a bank account to their brother, and the surviving spouse is entitled by the will to receive "the full residuary estate"; (i.e.anything else the decedent owned at the time of their death that wasn't specifically bequeathed by the will), but for some reason there are no other residuary assets, the Spousal Elective share would override the terms of the decedent's will and entitle them to take 30% of the value of that bank account and 30%of the value of the vacation house. This rule, like most of the rules relating to spouse's rights in probate, is designed so that a spouse doesn't end up destitute after the death of their spouse, even if they didn't intend for that to be the case. If, however, a spouse would be entitled to more than 30% of the decedent's assets, they would not "elect" to take the 30% share. They have the option to take the 30%, or if they are entitled to more, they can take whatever that amount is. Spouses, and only spouses, have this option available to them in probate proceedings.

Another, more realistic example, would be for a person who is separated and for all intents and purposes is no longer with their spouse, but for whatever reason is still legally married to them. This happens more frequently than you would think, since a marriage only requires a single document to form (a marriage license) and a divorce is a much more involved and costly process requiring multiple documents and an order entered by a judge. We have had clients approach us in a situation where their parent has died but is still legally married to an estranged spouse who then wishes to exercise their right by marriage to a share of the estate, and we have had to have the difficult conversation explaining this very concept. Even if a person specifically cuts their spouse out of their will, stating they are to receive nothing from the estate of the decedent, that spouse, as long as their marriage remains legally intact and divorce proceedings have not taken place, is entitled by Florida law to take a share of their assets if they wish to do so. But like all legal situations, there are two sides to every story. For another example, let's say a person dies after re-marrying shortly before their death. Their intention was for their new spouse to receive their estate but they never got around to drawing up a new will before they passed away, and the will they had in place states that their estate is to pass to their children from their previous marriage from whom they had become estranged during their lifetime.

From a legal perspective, it is impossible to prove the intentions or thoughts of a dead person, and written documents are enforceable, so in a probate proceeding, the decedent's spouse would not be entitled to any part of the estate which would pass to their spouse's children by the operation of the will. Because of the elective share, this spouse, to whom the decedent actually intended to leave their estate, is entitled to receive part of it and is able to supersede the terms of the will. In this example, the Spousal Elective share saves this person's spouse, the person with whom they chose to spend the rest of their days, and in fact spent their final days, from being inadvertently shut out of the distribution of their estate and allows them to overrule a document that was obviously written before they even met their partner. If all of these examples sound improbable it's because they are. These situations are rare when it comes to probate, but they do happen and when they do they can be a source of significant stress and confusion for anyone attempting to understand who is entitled to what. These rules exist specifically BECAUSE these sort of situations have happened before and new rules had to be written to account for them.

These examples are used to illustrate that a marriage is not just a major commitment and substantial signpost of an individual's life, but can even have an effect on their family after their death. Remember: as far as the law is concerned, a marriage trumps blood relation when it comes to probate. If you feel you are entitled to a share of the estate of a deceased person, the first question you should ask is "were they married at the time of their death."

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.