Let’s start this blog with an example. Yes, we love examples because they give you an abundance of clarity as compared to theoretical definitions and explanations. Let’s assume John and Jenny are a couple. But they are not happy with their married life. However, they decide to not get divorced because of their daughter, Rose. On one unfortunate day, John lost his cool and decided to remove Jenny completely from his will. This implies that Jenny won’t be a primary beneficiary of John’s will anymore and will receive a minimal part of his property after his death.
So, how does Jenny deal with this situation? After all, it’s all about her survival. Here’s where she can get the help of elective share law. This law is primarily launched to protect the surviving and disinherited spouse to ensure that he/she can lead a decent surviving life.
Analyzing the Elective Share Law
According to Section 732.2065 Fla. Stat. under the effective share law, the surviving spouse of the deceased in Florida can get 30% of the decedent’s estate. In other words, Jenny is liable to receive 30% of her husband’s estate under this law. This elective share law has been a savior for a large number of surviving spouses for a while now.
Check out some things that are covered under the elective share law and the surviving spouse can get the share in accordance with Section 732.2035 Fla. Stat.
- The property that is incorporated in the descendant’s irrevocable trust.
- Several death benefits payable under various retirement benefits.
- Property that may have been transferred a year before the person’s death.
- Property decedent irrevocably transferred if the decedent still had the right to receive income.
- Directly passing property to the surviving spouse of the decedent.
However, you must also know certain things which aren’t covered under the elective share law. Check out the list below.
- Transfers are made with the surviving spouse’s consent.
- More than 30% of the deceased property.
- Transfers made before the effective date of the new statute or after the effective date of the statute but before marrying the surviving spouse.
Elective Share Law Claim Procedure
So, what’s the timeframe under which Jenny can file elective share law. Check out the same below.
- Six months of notice of administration.
- Within two years of the descendant’s death.
However, Jenny won’t be getting the benefits of an elective share if the interested party proves that:
- The surviving spouse has procured the marriage by illegal ways/fraud.
- If the surviving spouse has murdered the deceased.
If no objection is filed against the surviving spouse, the entire effective share law process will be quite smooth and simple. But if an objection is filed, a hearing will take place. It will delay the process a bit.
The election can also be withdrawn if at any stage of the process it is found that the testamentary share is larger than the elective share.
How is Elective Share Calculated?
Check out the calculations of the elective share below.
- Deciding & determining the elective estate.
- Calculating the net elective estate.
- Calculating the 30% of the net elective estate. This is the amount to which surviving spouse is liable.
- Determining and calculating the satisfactory amount, if any.
Satisfaction Amount of Elective Share
When you read this word in the previous section, you might be having doubts about what is it. Firstly, understand what the elective share amount is. The satisfaction amount is the amount of elective shares minus the amount received by the spouse from all the sources.
In other words, in the case where the entire elective share is paid, there is no scenario of elective share. While if the full amount isn’t paid, there remains an amount that has to be paid and that amount is termed as the satisfaction amount.
You might feel that calculating & getting the elective share under your belt might be a difficult task. However, the process becomes easy once when you get clarity about it.
Should You File Election?
We highly advise you to file the election with the probate court. If your elective share amount will exceed the probate amount, you will be receiving the elective share amount. If not, you will be able to revoke the election and thus get the Probate amount. Thus, you aren’t going to face any loss by filing the elective share in the probate court.
However, it is necessary for you to select the right companion in order to ensure that you sail through the entire process with extreme ease. If you are looking for any sort of legal assistance in Florida, you might require help from an experienced Florida Probate Lawyer. Contact the law office of Michael Heider at 888-497-1369 to give yourself the best companion in terms of helping you to get the elective share. You can also reach out to us via email. We reply to every email in a prompt and crisp way and thus giving you a lot of clarity on several things.