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Elective Share Changes Reprinted June 1999 On June 11, 1999, Gov. Jeb Bush sign-ed into law revisions to the elective share statute. Beginning October 1, 2001, there are changes in the elective share statute which deals with the amount a surviving spouse inherits from a deceased spouse. The amount of the elective share re-mains at 30% of the deceased spouse’s estate. Currently, only the assets that go through the probate proceeding are counted. If a spouse has a living trust or a joint bank accounts, those assets passed to the named beneficiaries outside the probate proceeding. This assets were not included to calculate the elective share. So, to some extent, a surviving spouse could be disinherited if the deceased spouse owned assets in a trust and beneficiaries named are others than the surviving spouse. This new augmented estate law provides that a surviving spouse can claim 30% of the probate estate, revocable trusts, irrevocable trusts, cash surrender value of life insurance policies, retirement accounts, joint or "in trust for" accounts and transfers for less than fair market value the year before death. Everything is included to calculated the 30% elective share. However, the surviving spouse must make this election. It is not automatic. How does the surviving spouse make the election? That person must file a petition with the court within four months of the date of the notice of administration. There are no exceptions for assets acquired by gift or inheritance or before marriage. In addition, spouses can sign away their rights through legal agreements before or after marriage. Particularly, in the case of second or third marriages, couples may now want to consider post nuptial agreements that provide that neither party will inherit upon the death of the other. There are provisions for special needs trusts which allow disabled spouses to maintain Medicaid eligibility. Remember, the new law will affect deaths on or after October 1, 2001. If the elective share is an issue for you to be concerned about, you should certainly discuss this with your attorney.
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Copyright © 2002 Law Firm of Raymond L. Parri, P.A., All rights reserved.
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