Elective Share Litigation

In Florida, it is unlawful to disinherit your spouse. Both spouses are entitled to a percentage of an estate's value in what is known as an elective share. Sometimes, however, people only discover they were disinherited or cut from the will after their spouses have already passed away. If a resident of Ocala or the surrounding area has been disinherited by a spouse, the trust and probate litigation attorneys at the Dean Law Firm may be able to help them seek the justice they deserve.

Under Florida Probate Rule 5.360, a surviving spouse can file an election to take the elective share if he or she has been disinherited. The election can be filed after the surviving spouse's attorney or guardian has petitioned the probate court for approval to make the election. The petition will have to allege all the facts that support the election and must be served on all interested parties. In some cases, for good cause, the surviving spouse, his or her attorney, or his or her guardian can withdraw the election or obtain an extension to make the election.

Within 20 days of receiving a notice of election, an interested person or people may object to the election. The objection must include the particular grounds for objecting. If there is no timely objection served, the court will determine the spouse's elective share, but if there is a timely objection, the court will conduct a hearing to determine the appropriate course of action.

Under Fla. Stat. § 732.2065, a surviving spouse's elective share is equal to 30 percent of the elective estate.  However, in certain circumstances, a surviving spouse is not entitled to an elective share, due to a prenuptial or other written agreement executed by the surviving spouse before his or her death. A surviving spouse may not be entitled to an elective share when a marriage is procured by deceit, fraud, or duress, or when the surviving spouse unlawfully caused the decedent’s death.

Property interests, as well as revocable and some irrevocable trust assets, are subject to the elective share rules. After a surviving spouse receives the notice of administration from a decedent's executor, he or she has only six months to bring a claim for elective share. This means, if you discover you have been disinherited, it is important to act quickly and consult an attorney to make sure you pursue your appropriate share of assets and property.

Often, the period after a decedent's death is fraught with family tensions, particularly if a decedent's heirs do not get along. For example, in some cases, children may try to discourage a stepparent not to pursue any portion of the decedent's estate. However, elective share litigation is based on a surviving spouse's statutory rights. The experienced estate planning lawyers at the Dean Law Firm have years of helping surviving spouses in Ocala and beyond exercise their rights in Florida probate courts. We have assisted people in Crystal River and the Villages, as well as Marion, Sumter, Lake, Citrus, and Levy Counties. Call us at 352-387-8700 or contact us via our online form.