Selling an Inherited House With a Spousal Elective Share Claim in Florida

A will doesn't automatically get the final word on what a surviving spouse receives from a Florida estate. Here is what the elective share is under Florida probate law, the deadline that applies, and why it's worth understanding if a house is part of the estate.

What the elective share actually is

Under Florida Statute 732.2065, a surviving spouse can elect to take an amount equal to 30 percent of the deceased spouse's elective estate. Subject to applicable Florida probate law, the facts of the specific estate, and whether the spouse has validly waived this right, this election is not limited by what the will actually provides; a surviving spouse who was left less than that amount, or nothing at all, under the will may still be eligible to make this election. This is a statutory protection for the surviving spouse, separate from ordinary probate distribution under the will's own terms, and whether it applies in a specific case depends on the facts and needs to be evaluated by a probate attorney. If the will was executed before the marriage and never updated, a related but distinct protection may apply instead; see our guide on selling an inherited house with a pretermitted spouse claim in Florida for how that separate statute works.

The filing deadline

Under Florida Statute 732.2135, the election generally must be filed by the earlier of two dates: 6 months after the surviving spouse was served with the notice of administration, or 2 years after the date of death. A court can grant an extension in limited circumstances if a timely petition is filed. The surviving spouse can also withdraw an election within 8 months of the death, as long as the court hasn't yet entered its order of contribution. These are real deadlines, not general guidelines, and missing one can affect whether the election is still available.

Why this matters for a house in the estate

An elective share is a statutory share of the value of the deceased spouse's elective estate; making the election does not, by itself, give the surviving spouse title to or authority over any specific asset, including a particular house. How an elective share claim is ultimately satisfied, and whether it affects a specific property at all, is determined through the probate process based on the facts of that estate. This is a different issue from the general question of who has legal authority to sign a contract during probate; see our guide on selling a house during probate in Florida for how the personal representative's authority generally works. If the house may be protected Florida homestead property, that raises a separate, fact-specific set of devise and descent questions distinct from the elective share itself, and it also needs to be assessed by a probate attorney reviewing the actual facts of the estate. Whether and how a specific elective share claim, or a homestead issue, affects the sale of a specific house depends entirely on the facts of that estate, and that determination needs to come from the probate attorney handling the case. A surviving spouse may also be entitled to a separate, short-term family allowance during administration, which Florida law states is not chargeable against the elective share unless the will provides otherwise; see our guide on selling an inherited house with a family allowance claim in Florida for how that distinct protection works.

Where a sale fits

An as-is cash sale doesn't change the underlying probate process or an elective share claim; the personal representative still needs the legal authority to sell, and any required court approval, before a sale can close, the same as with any other estate sale. What a cash sale can remove is the added complexity of a financed buyer's timeline stacked on top of an already fact-specific legal process. Confirming the current status of any elective share claim, and how it affects the specific property, is something to do directly with the estate's probate attorney before assuming a sale can move forward on any particular timeline.

Frequently asked questions

What is a spousal elective share in Florida?

Under F.S. 732.2065, a surviving spouse in Florida can elect to take a share equal to 30 percent of the deceased spouse's elective estate. Subject to applicable Florida probate law, the facts of the specific estate, and whether the spouse has validly waived this right, this election is not limited by what the will actually provides, and a surviving spouse who was left less than that amount under the will may still be eligible to make this election.

Is there a deadline to claim an elective share?

Yes. Under F.S. 732.2135, the election generally must be filed by the earlier of 6 months after the surviving spouse was served with the notice of administration, or 2 years after the date of death, subject to a court-approved extension in limited circumstances. A surviving spouse can also withdraw an election within 8 months of the death and before the court's order of contribution.

Can an elective share claim affect selling an inherited house?

An elective share is a statutory share of the value of the elective estate; making the election does not by itself give the surviving spouse title to or authority over a specific house. If the house may be protected Florida homestead property, that raises a separate, fact-specific set of devise and descent questions distinct from the elective share itself. Whether and how a pending or resolved elective share claim, or a homestead issue, affects the sale of a particular house depends entirely on the facts of that estate and needs to be evaluated by the probate attorney handling it.

Do I need to wait for an elective share claim to resolve before selling?

That depends on the specific estate and where the claim stands. A cash, as-is sale doesn't change the underlying probate and elective share process; the personal representative's authority to sell, and whether court approval is needed, still depends on Florida probate law and the facts of the estate. Confirm the current status directly with the probate attorney handling the case before assuming a sale can proceed.

Handling an estate with a spousal elective share question? Call OfferLink at 407-584-9111. We buy probate and estate property across Florida, including Orange County, Seminole County, and Osceola County. This article is general information, not legal advice. A Florida probate attorney reviewing the specific estate is the right resource for confirming how an elective share claim affects a particular sale.