What is “electing against the will”, or “taking an elective share”?

“Electing against the will” refers to the right of a spouse to take a certain share of their deceased spouse’s inheritance. It can be utilized if the elective share is greater in the long run than the stated benefits of the spouse’s will.

The right to an elective share has its origins in England, where common law mandated that a certain portion of the decedent’s estate be reserved for the spouse, so as to prevent that spouse from becoming the burden of the community. In many American states today, the elective share ranges from 1/3 to 1/2 of the decedent’s estate. In Florida, it is 30% of the elective estate, as defined in the Florida Probate Code.