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Florida's Elective Share: Just What the Disinherited Spouse Needed

May 25, 2021

By: Melody Lynch & Michael Piccolo

It happens more often than you think: A surviving spouse is unknowingly excised from their predeceased spouse’s last will and testament to ostensibly be left with nothing. For instance, The Cars front man, Ric Ocasek, removed his wife of thirty years, Paulina Porizkov, from his last will and testament prior to his death and unbeknownst to his wife.

Mr. Ocasek and Ms. Porizkov were in the midst of a divorce that was reputedly amicable. However, before their divorce was finalized, Mr. Ocasek died unexpectedly. The blindside to Ms. Porizkov was twofold: the unexpected loss of her children’s father; and the discovery that Mr. Ocasek had cut her out of his will. Ms. Porizkov petitioned a New York probate court for entitlement to a right of election, which is known in Florida as a surviving spouse’s elective share.

As a surviving spouse, Florida statutes entitle you to an elective share of your predeceased spouse’s elective estate. Entitlement to the elective share is statutory; that is, even if your spouse cut you out of his/her last will and testament, you are still entitled to an elective share of your predeceased spouse’s elective estate.

According to Florida law, the elective share is up to 30% of your predeceased spouse’s elective estate. The elective estate includes not only the entirety of your predeceased spouse’s probate estate, but it also includes (among other things) certain property transferred by your spouse during the year prior to his/her death that would have been included in the predeceased spouse’s probate estate.

Surviving spouses faced with excision from their predeceased spouse’s last will and testament must be vigilant of the strict time deadlines to petition for entitlement to their elective share. Generally, a petition must be filed within six months of receiving notice of administration of your spouse’s estate or within two years of your spouse’s date of death, whichever occurs first. Failure to adhere to such deadlines may result in waiving entitlement to the elective share, which, in some cases, is the only avenue of recovery from your spouse’s probate estate.

Navigating elective share issues are particularly nuanced given the extraordinary amount of statutes and procedural rules governing entitlement to the elective share. Moreover, the issues of discovering and determining the total amount of assets that comprise your predeceased spouse’s elective estate are often complicated.

If you are a surviving spouse in the unfortunate position of being excised from your predeceased spouse’s last will and testament, you should consult with a Florida probate attorney to protect and exercise your rights and entitlement to an elective share.

This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.

Melody Lynch focuses her practice on probate, trust & fiduciary litigation, contested guardianships, and complex business disputes. Her MBA complements her law degree when she analyzes financial statements and handles other complicated issues involving assets. 

A significant portion of Melody’s practice is devoted to resolving conflicts among family members and other estate beneficiaries, fights over missing assets and property ownership, claims by or against fiduciaries, guardianship challenges, and other proceedings requiring the interpretation of wills and trusts. She frequently helps charitable organizations, foundations, trustees and other institutional beneficiaries of large estates navigate the probate process. Whether in or out of the courtroom, Melody handles these delicate – and often emotional – issues not just with legal proficiency but with compassion as well.  

Melody’s experience extends to other business disputes too, particularly in the employment law arena with matters involving restrictive covenants as well as non-compete and non-disclosure agreements. She has protected employers in a wide range of industries, including medical devices, pest control, physicians and physician practices. 

In addition, she is a Guardian ad Litem for the Legal Aid Society where she represents the interests of abused and neglected children. She also is a pro bono attorney for Seniors First where she represents the interests of indigent elderly wards. 

The court room isn’t the only stage on which Melody has appeared. Before pursuing her career in law, Melody attended college on a ballet scholarship and was an apprentice dancer with a professional ballet company. A native of Orlando, her passion for both the arts and the area informs her leadership roles in the Central Florida community. She serves as president-elect of the Orlando Philharmonic Orchestra, was named to the prestigious Orlando Business Journal’s "40 under 40" list, and was awarded the Presidential Leadership Award by the Orange County Bar Association. 


Michael Piccolo focuses his legal practice on complex litigation, civil litigation, commercial litigation, business litigation, intellectual property litigation, significant divorce cases, and probate and trust litigation.

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