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Rights Of A Surviving Spouse In A Florida Probate

By Brandon D. Bellew | Categories: Blogs, Trusts & EstatesPrint PDF August 2018

There is a long list of rights and benefits that a surviving spouse is entitled to receive from a deceased spouse’s (“decedent”) estate (or trust) under the Florida Probate Code. A surviving spouse may be entitled to all or some of the following probate rights upon the death of his/her spouse: 1. Homestead property (Article X, Section 4(c) of the Florida Constitution and Florida Statutes Section 732.401), 2. Intestate share of probate estate (Florida Statute Section 732.102); 3. Elective share (Florida Statutes Sections 732.201 – 732.2155); 4. Exempt property (Florida Statutes Section 732.402); 5. Family allowance (Florida Statutes Section 732.403); and 6. Pretermitted spousal share of probate estate (Florida Statutes Section 732.301).          


A Florida resident cannot freely devise his/her homestead by will or trust if the decedent has a minor child or surviving spouse. If the decedent is survived by a spouse and a minor child or if there is no minor child and the homestead is not fully and completely devised to the surviving spouse, the devise of the homestead is ineffective, and the property will automatically pass with a life estate to the spouse and the remainder passing equally to the decedent’s descendants. Fla. Stat. § 732.401(1). The surviving spouse may elect, within six months of the decedent’s death, to take an undivided one-half interest in the homestead property instead of a life estate. Fla. Stat. § 732.401(2). The election must be recorded in the official records of the county where the property is located—not filed in the probate proceeding—and the election is irrevocable. Id.


Under Florida Statutes Section 732.102, if a person dies without a valid will (intestate), the surviving spouse is entitled to receive: 1. the entire probate estate if: a. the decedent has no descendants or b. all descendants are also descendants of the surviving spouse; 2. half of the probate estate if: a. there are descendants of the decedent who are not also descendants of the surviving spouse or; b. if there are descendants of the decedent who are also descendants of the surviving spouse but the surviving spouse also has descendants who are not descendants of the decedent. This does not include assets held in trust.


A Florida resident cannot cut his/her spouse out of receiving a share of his/her estate, trust, or property upon death. The surviving spouse of a Florida resident has the right to make an election to take an elective share of the deceased spouse’s elective estate. Florida Statute § 732.201. The elective share is equal to 30% of the elective estate. Fla. Stat. §732.2065. This is a very complex concept, and this article only provides a basic explanation. The elective estate is calculated by adding the net values of all the deceased spouse’s probate assets and non-probate assets, which would include assets owned jointly with others, assets held in a revocable trust (or other revocable transfers), certain irrevocable transfers with a retained right by the transferor to receive income or principal, cash value of life insurance policies, pensions, interest in protected homestead, retirement plans, transfers made within one year, and irrevocable transfers to an elective share trust. Fla. Stat. § 732.2035. Any property interests that are included in the elective estate that pass to the surviving spouse count towards satisfaction of the elective share. This includes any property devised to the spouse through the decedent’s will and trust, property received by beneficiary designation, the decedent’s share of any property owned jointly with the surviving spouse, proceeds from a life insurance policy (term or other) on the decedent’s life that are payable to the spouse and owned by someone other than the spouse. If these assets are not enough to satisfy the elective share, then it is possible that recipients of the decedent’s property would be required to contribute to the satisfaction of the elective share. Fla. Stat. § 732.2075


The surviving spouse (or lineal descendants if there is no surviving spouse) is entitled to receive assets from the decedent’s probate estate designated as “exempt property.” Fla. Stat. § 732.402. This includes household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death, two motor vehicles (certain restrictions for type and size) held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles, certain qualified tuition programs, and certain death benefits paid to teachers and school administrators. Exempt property is in addition to the elective share, property devised by the decedent’s will, or assets inherited by intestate succession (without a will).


Under Florida Statutes Section 732.403, the surviving spouse is also entitled to a reasonable allowance of money payable from the probate assets for maintenance during the administration process. The maximum amount is $18,000. The allowance may be paid in a lump sum or installments. It is not automatic and is only awarded after a petition, notice, and a hearing. The need for the allowance does not need to be proved, but the reasonableness of the amount must be established. Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005)(citing DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2d DCA 1990)).


If the person gets married after making a will and the spouse survives the decedent, the surviving spouse will receive an intestate share (see above) unless (1) a prenuptial or postnuptial agreement provides for the spouse or includes a waiver by the spouse, (2) the will provides for the spouse; or (3) the will discloses an intention not to make provision for the spouse. Fla. Stat. § 732.301.

All potential rights of a surviving spouse should be reviewed after the death of a spouse. This is especially true if there is a blended family situation.




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