Legal Question in Wills and Trusts in Florida

She is entitled to 1/3 of the "elective estate" which includes all the probate property as well as property she gained by surviorship, insurance interests, death benefits on a 401k etc. So much of what she received is part of that elective estate. The lawyer handling the estate should make determination of what items are in the elective estate and handle her claim.

This gets complicated. First, technically it is not one third of the estate; it is 30 percent which is close but not quite a third.

Second; The actual calculation gets very complicated; but essentially you add together all property passing under the probate estate AND all the property passing outside the probate estate; which gives you a grand total; She would be entitled to 30 percent of that grand total; however, you THEN look at what she gets outside of probate and then deduct that from the grand total; it will reduce, maybe eliminate, her elective share. And how you calculate what she 'gets' depends on how property is titled, etc Something passing by beneficiary designation is counted somewhat differntly than something passing by Joint Ownership. . You need to talk to a lawyer who knows exactly what they are doing on this AND have ALL of the numbers available so they can run the calculations.

Seek legal guidance on whether the calculations are being done correctly.

In answering this question, I am assuming that you or your counsel have determined that there is no nuptial agreement wherein your stepmother waived her spousal rights. That being said, a surviving spouse is entitled to a minimum share of the estate which includes property passing outside of probate (such the life insurance, the pension and the 401k). Now what is she entitled to as a minimum? The surviving spouse is entitled to 30% of the total estate. All property in which your father had an interest must be valued. The estate would generally include all securities, transfer on death accounts, joint tenancies plus your father�s interest in trusts (usually revocable), the value of property in irrevocable trusts which would be included in your father�s taxable estate, the cash surrender value of life insurance, death benefits under retirements plans, property gifted within one year of death, plus the property given to your stepmother withing one year of the date of death and at death. May I suggest that you consult with a local attorney to discuss the details. My response is intentionally general because I have no sense the values of different pieces of your father�s estate. In order to obtain an elective share, your stepmother would need to petition the probate court for a determination of the share to which she is entitled. You (or more accurately, your attorney) will then have an opportunity to contest her determination.