In Florida, the death of a spouse does not always mean that the surviving spouse receives everything left behind. When someone dies with a will—or even without one—state law provides the surviving spouse with certain minimum inheritance protections. Chief among these protections is the “elective share,” a statutory right that allows a spouse to claim a percentage of the deceased spouse’s estate, regardless of what the will or trust says.
But what if the parties entered into a prenuptial agreement that said otherwise? Can a Florida prenup waive the surviving spouse’s right to claim an elective share? The answer is yes—if the agreement is properly drafted and executed. A Tampa prenup lawyer can ensure that any waiver of elective share rights is enforceable, clearly expressed, and aligned with the broader estate planning goals of both parties.
This article explains what the elective share is in Florida, how it operates, and how a prenuptial agreement can be used to waive it. It also explores what happens when prenups fail to adequately address inheritance rights and why careful legal drafting is essential for high-net-worth couples and blended families.
What Is the Elective Share in Florida?
Florida law does not allow a spouse to be completely disinherited through a will, trust, or estate plan—at least not without their consent. Under Florida Statute §732.201 through §732.2155, a surviving spouse is entitled to an “elective share” of the deceased spouse’s estate. This is a legal right to claim a portion of the estate, regardless of the contents of a will.
In Florida, the elective share is equal to 30% of the elective estate, which includes more than just probate assets. It can include:
- Probate property
- Certain revocable trusts
- Jointly owned property
- Payable-on-death accounts
- Life insurance and annuities (under certain conditions)
- Transfers made within one year of death
This expansive view of the “elective estate” was created to prevent spouses from shielding assets through estate planning tools that operate outside of probate.
The elective share is designed to protect surviving spouses—especially those who may be financially vulnerable after the death of a wealthier partner. However, when both parties agree in advance to waive this right, Florida law permits that waiver through a properly executed prenuptial agreement.
Can You Waive the Elective Share in a Florida Prenup?
Yes. Florida law allows prospective spouses to waive their elective share rights in a prenuptial agreement. Under Florida Statute §732.702, a waiver of the elective share is valid so long as it meets the following conditions:
- The waiver is in writing;
- It is signed by both parties;
- It is executed voluntarily;
- There was fair and reasonable disclosure of assets, unless that disclosure was waived in writing.
The waiver can be made before or after the marriage, but when done before marriage, it must be included in a prenuptial agreement. A Tampa prenup lawyer can structure this waiver to withstand legal scrutiny and ensure it aligns with the couple’s estate planning objectives.
Why Waive the Elective Share?
There are many reasons a couple might choose to waive the elective share in a Florida prenup:
- Second or later marriages: Each spouse may want to preserve their estate for children from a previous relationship.
- Asset protection: One party may have significant assets they do not wish to transfer upon death.
- Business continuity: Preventing a surviving spouse from claiming a share of a closely held business.
- Estate planning certainty: Ensuring the will and trust instruments control distribution without statutory override.
- Mutual independence: Some couples agree that each will retain separate estates and waive all rights to the other’s property.
In each case, the waiver must be clearly expressed and accompanied by full financial disclosure or a written waiver of that disclosure. Failing to do so may result in the agreement being set aside later.
Drafting a Valid Waiver of Elective Share Rights
To waive the elective share in a Florida prenup, the agreement must be carefully drafted to meet statutory requirements and avoid later litigation. A Tampa prenup lawyer will typically include language that:
- Expressly waives the elective share under Florida Statute §732.201 and related sections;
- Acknowledges the right to full financial disclosure, and either confirms that such disclosure was provided or that it was knowingly and voluntarily waived;
- Specifies whether other rights are also being waived, such as the right to homestead property, family allowance, or intestate share;
- States that the waiver survives death, and will be enforceable against the estate.
The waiver must not be hidden in a paragraph or implied through vague language. It should be clear, prominent, and signed by both parties with full understanding.
Can the Waiver Be Challenged Later?
Yes—but only in limited circumstances. If the prenup meets the requirements of §732.702, it is presumed valid. However, a surviving spouse may challenge the waiver on several grounds:
1. Lack of Voluntariness
If the spouse was pressured or coerced into signing the prenup, or signed under duress, the waiver may be unenforceable.
2. Inadequate Financial Disclosure
If the waiving spouse did not receive fair and reasonable disclosure of the other spouse’s assets, and did not waive the right to disclosure in writing, the waiver may fail.
3. Unconscionability
If the waiver was so one-sided that enforcing it would shock the conscience, a court might refuse to enforce it. This is rare and requires a showing of extreme unfairness.
4. Procedural Defects
If the agreement was not signed, was not in writing, or was not executed properly, the waiver is invalid.
A Tampa prenup lawyer ensures that all of these risks are addressed by using precise language, formal execution, and comprehensive disclosures.
What Happens If There’s No Waiver?
If a valid waiver is not in place, and a spouse dies, the surviving spouse may:
- File an election to claim their 30% elective share within the statutory deadline (typically within six months of receiving notice of administration, but not more than two years after death);
- Force a recalculation of the elective estate to include assets held in revocable trusts, jointly titled accounts, and other non-probate devices;
- Complicate the administration of the estate, especially if the deceased intended to leave most or all assets to children or other beneficiaries.
The absence of a waiver can undermine sophisticated estate planning and create conflict between the surviving spouse and other heirs. For this reason, high-net-worth individuals, blended families, and entrepreneurs often opt to waive elective share rights in a prenup.
Homestead Rights vs. Elective Share
In Florida, homestead rights are another form of statutory protection for surviving spouses. These rights can exist independently of or alongside the elective share. For example:
- A surviving spouse may receive a life estate in the homestead if the decedent has children from another relationship;
- The spouse may choose to take a 50% interest in the homestead as tenants in common with those children;
- If the prenup does not waive homestead rights, these protections apply even if the elective share is waived.
A comprehensive prenuptial agreement will address both elective share and homestead rights. A Tampa prenup lawyer will ensure consistency across all inheritance-related clauses and help avoid unintended results.
Including Waivers of Other Inheritance Rights
In addition to the elective share, Florida law provides other inheritance rights that may be waived in a prenup:
- Intestate share (if the spouse dies without a will)
- Pretermitted spouse rights (if the spouse is omitted from the will)
- Family allowance (up to $18,000)
- Exempt property (household items, vehicles, etc.)
All of these can be waived in a prenuptial agreement if the waiver meets statutory requirements. A Tampa prenup lawyer will often bundle these waivers into a single section of the agreement to avoid piecemeal disputes later.
Timing and Execution of the Prenup
The strongest waivers occur when:
- The agreement is signed well in advance of the wedding;
- Both parties are represented by independent legal counsel;
- Full and fair financial disclosure is provided in writing and attached as an exhibit;
- The waiver is specific, informed, and clearly intended.
Prenups signed under time pressure or without legal guidance are more likely to be challenged—especially after the death of one spouse, when emotions and financial stakes are high.
How Courts Treat Elective Share Waivers in Litigation
Florida courts are generally willing to uphold a valid elective share waiver contained in a prenup. However, the surviving spouse may argue that they:
- Did not understand what they were signing;
- Were misled about the value of the deceased spouse’s estate;
- Never received disclosure of offshore assets, businesses, or trusts;
- Did not know they were giving up the right to live in the homestead.
A Tampa prenup lawyer will anticipate these challenges and draft the agreement with clear language, signed disclosures, and acknowledgment of the rights being waived.
Strategic Considerations for Waiving Elective Share Rights
Before including an elective share waiver in a prenup, couples should consider:
- What will each party receive instead? The waiver may be more enforceable if the spouse waiving their rights is receiving other benefits—like a fixed sum, a life insurance policy, or trust interest.
- Is the waiver mutual? Both spouses may agree to waive elective share rights, especially in second marriages.
- Are there children from prior relationships? If so, a waiver helps preserve those children’s inheritance.
- Are there trusts in place? The waiver may interact with revocable or irrevocable trusts and should be coordinated with estate planning attorneys.
A Tampa prenup lawyer may work in tandem with an estate planning attorney to ensure that all documents work together and reflect the same goals.
When Should You Revisit a Prenup?
Life changes—and so do assets, relationships, and laws. Even if a valid waiver of elective share rights is included in a prenup, it’s wise to review the agreement periodically, especially when:
- One party’s wealth increases substantially;
- Children are born or adopted;
- One spouse becomes incapacitated;
- Major changes in estate tax laws occur;
- The couple moves to another state or acquires out-of-state property.
Postnuptial agreements and amendments can be used to update or reaffirm waivers when needed. A Tampa prenup lawyer can assist with these revisions to maintain enforceability.
Key Mistakes to Avoid
Failing to waive the elective share correctly can undermine an entire estate plan. Common mistakes include:
- Failing to include the waiver in writing;
- Failing to obtain a signed financial disclosure or waiver;
- Using vague language that doesn’t reference the elective share specifically;
- Assuming a will or trust can override the elective share without a waiver;
- Not considering homestead rights as a separate issue.
A Tampa prenup lawyer ensures that each of these issues is addressed with precision, reducing the risk of litigation and estate disruption.
FAQ
Can a Florida prenup waive the elective share?
Yes. A valid prenuptial agreement can waive the surviving spouse’s right to claim the elective share under Florida law.
What is the elective share in Florida?
The elective share is 30% of the deceased spouse’s elective estate, which includes both probate and non-probate assets.
Is financial disclosure required to waive the elective share?
Yes, unless the party waives disclosure in writing. A prenup that includes an elective share waiver must have either fair disclosure or a written waiver.
Does waiving the elective share also waive homestead rights?
Not necessarily. Homestead rights must be waived separately. A Tampa prenup lawyer can include both waivers in the same agreement.
Can the waiver be challenged after death?
Yes, but only under limited circumstances—such as duress, fraud, or lack of disclosure. Valid waivers are generally upheld.
What if the deceased spouse used trusts to hide assets?
The elective share applies to certain non-probate assets, including some trusts. A surviving spouse may still claim their share unless properly waived.
Can the waiver be mutual?
Yes. Both parties can waive elective share rights as part of a mutual agreement, which is common in second marriages.
Does signing a prenup automatically waive inheritance rights?
No. The waiver must be explicit. General statements about separate property are not enough to waive the elective share.
What happens if there is no prenup and no waiver?
The surviving spouse can elect to take 30% of the elective estate, which may include trusts, joint accounts, and other non-will assets.
Should I consult a lawyer before waiving elective share rights?
Absolutely. A Tampa prenup lawyer can explain the consequences, draft enforceable language, and ensure your rights are protected.
The McKinney Law Group: Prenups That Protect Tampa Clients from Uncertainty
A prenuptial agreement doesn’t mean you’re planning for divorce—it means you’re planning responsibly. We help Tampa couples outline financial expectations before marriage with clarity and care.
Call 813-428-3400 or email [email protected] to get started.