Unfortunately, you may have been experiencing a rough patch in your marriage towards the end of your deceased spouse’s lifetime. That is, you may have been physically separated or in the middle of a divorce case. Even though you may have still been legally married at this time, your spouse may have modified their existing will document to disinherit you. Well, this is when you may have to petition the Florida probate court for your elective share of their estate, possibly even citing their revocabletrusts. With that being said, please continue reading to learn whether trusts can be counted towards your elective share and how an experienced Broward County estate lawyer at The Probate Lawyers can help with your understanding of your legal rights, the filing requirements, with meeting deadlines, and more.
What assets are generally counted in an elective share?
First things first, as a surviving spouse in Florida, you may be granted the legal right to claim 30 percent of your deceased spouse’s elective estate, even if their valid and enforceable will document has disinherited you. This is because the state views your marriage as a financial partnership, and thereby, it is only fair to receive financial protection upon your spouse’s death. On that note, the “elective estate” mostly consists of the property and assets that go through probate. Namely, this may include bank accounts, investment accounts, real estate property, etc.
Can I claim an elective share if my spouse put assets in trusts?
Importantly, your deceased spouse’s elective estate may extend beyond the aforementioned probate assets and also include non-probate assets, like revocable trusts. Of note, your spouse likely set up these beneficiary-designated trusts in a direct attempt to disinherit you from their estate. This may be made all the more evident if your spouse transferred funds into these trusts shortly before their death.
And so, to claim the assets put in trusts, you must file a formal Election to Take Elective Share with the probate court handling your spouse’s estate (i.e., the court in the county where your spouse lived). Here, a factor that may support your argument is that your spouse retained control or beneficial use of these assets during their lifetime (i.e., it was a revocable). That said, irrevocable trusts may be harder to argue for.
Lastly, while you are here, you may attempt to fight for other non-probate assets like life insurance policies, retirement accounts, transfer-on-death accounts, etc. This may become contested rather quickly by the beneficiaries who were intended to receive them, so we may help you figure out whether this is worth the legal cost. In conclusion, if you are ready to step foot into this legal path, do not do so until you have retained a skilled Broward County estate lawyer from The Probate Lawyers. We look forward to your phone call and to taking on your case.
