This one surprises people all the time, so let me start here: in Florida, it’s very hard to completely cut your spouse out of your estate plan.
I often hear some version of this question: “Can I leave my spouse a dollar?” “What if everything is in a trust?” “What if I already decided who should get what?”
In Florida, the answer is usually the same: not so fast.
Florida law is very protective of surviving spouses. Even if a will or trust tries to leave a spouse nothing (or a symbolic $1), the surviving husband or wife may be able to claim something called an elective share. Think of it as a built-in safety net the law provides.
Here’s the big number to know: If someone dies while domiciled in Florida, the surviving spouse can generally claim 30% of the “elective estate.”
And here’s where people are genuinely caught off guard: The elective estate is often much larger than the probate estate.
It can include assets people assume are “protected,” such as:
- Certain revocable trust assets
- Pay-on-death (POD) and transfer-on-death (TOD) accounts
- Joint accounts or property with rights of survivorship
- Many retirement accounts
- The cash value of some life insurance policies
- Certain gifts made shortly before death
So trying to disinherit a spouse by “keeping everything out of probate” often doesn’t work the way people expect.
What This Can Look Like in Real Life
Here’s where plans can unravel. A parent leaves everything to adult children from a prior marriage, assuming the surviving spouse “has enough of their own.” The spouse later claims the elective share, and suddenly the children must contribute cash—or even sell assets—to satisfy it.
Or a family business is left to one child, but the elective share applies to its value. That child may be forced to borrow money or sell part of the business to pay the surviving spouse.
Even well-meaning plans can cause tension when expectations don’t match Florida law.
Now, can a spouse agree to receive nothing?
Yes—but only with a proper written agreement, such as a prenuptial or postnuptial agreement (or another valid waiver), signed with the required formalities. Verbal promises or “we talked about it” won’t do it.
One very important note for surviving spouses: timing matters.
In Florida, the elective share must usually be claimed by the earlier of:
- Six months after being served with the Notice of Administration in probate, or
- Two years from the date of death
Miss that window, and the right may be lost.
The takeaway: Florida’s spousal protection rules can dramatically change what an estate plan actually accomplishes—especially for second marriages, blended families, or couples with “his and hers” children.
A thoughtful review now can prevent confusion, conflict, and heartache later—exactly what good planning is meant to do.
