The Florida Probate Code is Title XLII, Chapters 731 through 735 of the 2011 Florida Statutes. Pursuant to the Florida Probate Code, a surviving spouse has a legal right to receive an elective share of her deceased spouse’s probate estate at his death. By electing to receive her statutory share, she disclaims her interest in his will in favor of her elective share. Florida law sets a surviving spouse’s elective share at 30 percent of the decedent’s estate.
Thus, a wife who survives her husband has a legal right to disclaim her interest created by his will in favor of her 30 percent elective share. By creating the elective share statute, the Florida Legislature prohibits spouses from entirely disinheriting their surviving spouses. To prevent one spouse from having to rely on the state for monetary assistance and to prevent that spouse from becoming destitute and impoverished, the Florida Legislature allows a surviving spouse to choose an elective share. In some situations, spouses can disinherit one another with proper estate planning, which includes having to draft validly created prenuptial or postnuptial agreements. Although the Florida Legislature does not advocate divorce, it recognized the practical need for some spouses to protect their separate assets.