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Probate Litigation: Elective Share Litigation

Date Added: July 20, 2011 05:22:04 PM
Author: admin
Category: Wills and Probate

In some states, the disinheriting of spouses has become a major legal issue. To protect spouses from this legal battle, Florida has passed the "Florida Elective Share" law. This law protects widows and widowers.


This article is provided on behalf of Attorney Adrian Thomas, all information is for educational and reference purposes only.


The "Florida Elective Share" law can be found in the Florida States, section 732.201. This section states that a person who is a surviving spouse has a right to have an elective share of a decedent's estate. The law essentially protects surviving spouses and entitles them to a greater portion of a decedent's estate. Under this law, a surviving spouse is entitled to receive 30% of the decedent's estate. A spouse may choose to receive 30% of the estate if he or she is not satisfied with the amount received in a will.

One of the major protections afforded by the "Florida Elective Share" law is the ability to contest a will even in consideration of certain provisions in the will. Even if a will has provisions stating that one is barred from an inheritance for contesting a will, a spouse may still bring a claim forward under the "Florida Elective Share" law.

When a surviving spouse receives funds under this law, he or she is barred from taxation too. The surviving spouse marital deduction generally covers surviving spouses from estate taxation. Unfortunately, if a surviving spouse is not a citizen of the United States, then there are taxes that will apply.

One only has 6 months to file a claim for the elective share under this law. The 6 month time period begins tolling at the time in which a probate estate has received a notice of administration. After the elective share option has been made, a personal representative of the Florida probate estate will then have to file the estate inventory.

Sometimes, a spouse will want to challenge the contents of a will under this law. In that case, a spouse will have 90 days to file a will contest. Other times, a person should file a will contest as soon as possible to ensure his or her inheritance.

Probate litigation is a very broad area of law. There are also other instances when a person may want to reopen a probate case. Sometimes, a person will be entitled to extra funds due to debts that were owed to the decedent by a third party. If an estate attorney is able to recover funds from a third party, then a surviving spouse may be able to receive a greater inheritance from the estate.

The key to successfully handling a probate litigation case is being proactive and aware of any new developments surrounding the situation. The more aware a person is, the more likely he or she can receive a rightful inheritance.