Detailed Answer

What is an elective share (basic explanation)

In Florida, an elective share is a legal right that allows a surviving spouse to claim a portion of a decedent’s estate despite what the will or other estate planning documents say. Heirs (for example, children or beneficiaries named in a will) may dispute a surviving spouse’s elective share claim when they believe the claim is incorrect, incomplete, or based on inaccurate calculations. For the statutory framework that governs elective shares in Florida, see the Florida probate statutes at Chapter 732: https://www.flsenate.gov/Laws/Statutes/2024/Chapter732 and the statutory entry point at section 732.201: https://www.flsenate.gov/Laws/Statutes/2024/732.201.

Why mediation can help

• Mediation is usually faster and less expensive than a contested court case.
• A neutral mediator helps clarify legal issues and factual disputes (assets, valuations, and prior transfers).
• Mediation keeps negotiations private and can preserve family relationships.

Step-by-step process heirs should follow to resolve an elective share dispute through mediation

1. Confirm legal standing and basic rights.

   Identify who has standing in the probate case (personal representative, named beneficiaries, heirs at law). Make sure the person who will attend mediation has authority to negotiate for the estate (personal representative) or, if you are an heir, that you understand the scope of your claim.

2. Collect key estate documents.

   Gather the will, any codicils, trust documents, death certificate, appointment of personal representative, inventory and accountings, asset lists (bank, brokerage, real estate deeds, titled vehicles), beneficiary designations, marital agreements (prenuptial/postnuptial), and any documents that show transfers made before death. Complete and organized documentation markedly improves mediation outcomes.

3. Request or prepare an elective-share calculation.

   Either work with counsel or ask a qualified probate accountant to prepare a proposed calculation of the elective estate and the amount the surviving spouse claims. Identify disputed items—e.g., whether certain transfers are part of the elective estate, values, or credits for lifetime transfers to the spouse.

4. Choose the mediator and mediation format.

   Select a mediator experienced in probate or family estate disputes. Parties can use a private mediator, a mediator from a court-approved list, or request court-ordered mediation if the probate court offers it. Confirm the mediator’s neutrality and experience with elective share issues.

5. Agree on mediation logistics and confidentiality.

   Set the date, length, location (in-person or virtual), and fees. Confirm whether the session will be confidential and how mediation communications will be handled. If you are unsure about confidentiality protections under Florida law, discuss them with counsel or the mediator before the session.

6. Exchange pre-mediation statements and documentary evidence.

   Prepare a short mediation statement that summarizes your view: the contested legal issues, factual disagreements, and desired outcomes. Share key documents reasonably in advance so all parties and the mediator can prepare. Keep the statement focused and fact-based.

7. Attend mediation and negotiate.

   Bring counsel if possible. The mediator will meet with all parties together and may hold private caucuses. Stay focused on areas where compromise is possible, such as valuation methods, allocation of specific assets, or structured payments. Have decision-makers available or bring written authority to settle within specified limits.

8. Memorandum of understanding (MOU) and formal settlement agreement.

   If you reach agreement, the mediator or counsel typically prepares an MOU or term sheet. After parties sign a settlement, draft a full settlement agreement and release. If the settlement changes probate distributions, file the agreement or a motion with the probate court if the court’s approval is required for a valid settlement or distribution.

9. Implement the settlement.

   Carry out the terms: transfer titles, make payments, record releases, prepare tax accounts if needed, and file necessary court paperwork (e.g., notice of settlement, stipulation of dismissal, or requests for approval). Keep records of satisfaction and releases to prevent future claims.

10. Plan for enforcement if the other side breaches.

    Include enforcement clauses (e.g., remedy for breach, attorney fees, and jurisdiction) in the settlement. If mediation fails or a party breaches the settlement, counsel can file appropriate motions in probate court or litigation to enforce rights.

When court approval is necessary

Some settlements that alter distributions or affect creditors’ rights require the probate court’s approval. A personal representative often needs court authority to make certain transfers. Include an instruction in the settlement about who will file required motions or petitions so the settlement becomes effective under court supervision.

Costs, timeline, and likely outcomes

Mediation typically costs less than full litigation and can take days or weeks rather than months or years. Outcomes vary: parties may reach a full settlement, a partial agreement (narrowing issues), or no agreement, in which case the dispute proceeds to court. A realistic assessment from probate counsel helps set settlement expectations.

What happens if mediation fails

If mediation fails, parties can pursue litigation in probate court. Mediation does not waive your right to litigate unless you sign an agreement stating otherwise. Keep records of offers and statements made at mediation. Note that mediation communications are often confidential and not admissible in court—but confirm with counsel and the mediator about the applicable confidentiality rules before disclosing sensitive information.

Helpful Hints

• Start early: propose mediation as soon as disputes arise to avoid costly discovery and litigation delays.
• Hire an attorney with probate and mediation experience to prepare your position and represent you at the table.
• Bring a clear, concise asset inventory and valuation support (appraisals, account statements, deeds).
• Be ready to explain and document any lifetime transfers and the decedent’s intent behind them.
• Keep emotions separate from legal facts. Mediation favors practical solutions over “winning” on every point.
• Get written settlement terms and, when appropriate, court approval before distributing assets.
• Confirm who will pay mediation fees and whether fees will be split, borne by the estate, or assigned elsewhere.
• Ask the mediator about mediation confidentiality and how any mediation statements will be treated if the case later goes to court.
• Consider using neutral financial experts (e.g., forensic accountant or estate appraiser) when the main disagreements involve valuation or complex transfers.