Effective July 1, 2017, the Florida Legislature has amended Florida Statute 732.2035 dealing with property entering into the “elective estate.” The Legislature has added into the list of assets that make up the elective estate for the first time, the decedent’s interest in property which constitutes the protected homestead of the decedent. The law establishing an elective estate or “elective share,” as it is known, is designed to protect surviving spouses from being completely disinherited. The law provides that a surviving spouse must receive at least 30% of the decedent’s “elective estate,” no matter what the decedent’s Will, Trust, or other type of estate plan might say. This statute then goes on to list all of the various types of properties and assets that are included in the calculation of the “elective estate.” Previously, the homestead was not included.

What this means is that before July 1, 2017, a surviving spouse would receive his or her interest in the homestead property, plus 30% of the elective estate. Under the new law, the value of the homestead is lumped in with the other assets comprising the elective estate and the surviving spouse receives only 30% of the total. The end result is that the surviving spouse is less protected under the new law than before.

As best I can understand, the reasoning for this law is that it affords people broader authority to determine what will happen to their assets when they die. Currently, the elective share and homestead laws provide a limitation on that individual freedom to dispose of property. The reason for the limitation is so that a surviving spouse may not be left destitute to become a burden on the taxpayers. The Legislature now has decided this lesser amount is enough to accomplish this goal.

Any thoughts on whether this is a good or bad law?

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