Rights of Surviving Spouses

Surviving spouses are afforded certain rights to the estate of the decedent – regardless of whether there was a will or even the terms within the will. There is no will in this state that can disinherit a spouse, and when there is no will, a spouse is usually entitled to a substantial portion of the estate. The exception would be if a spouse waived certain rights via a marital agreement.

At The Ansara Law Firm, our dedicated Fort Lauderdale probate litigation lawyers are committed to advocating for the rights of surviving spouses and helping them navigate what is often a complex legal landscape as we work to recover the assets, income and other benefits you may be owed.

Florida spousal rights are outlined numerous times in Florida’s probate code, including in sections one:

  • Family allowance;
  • Homestead property;
  • Elective share;
  • Intestate share;
  • Exempt property.

Because there are tight deadlines in Florida probate, it’s critical that surviving spouses seek legal counsel as soon as possible to ensure these rights are effectively secured. Missing a probate deadline could result in a spouse losing out on important benefits.

What If My Spouse Died With No Will?

When an individual with no will, that person is classified as having died “intestate,” per F.S. 732.101. When a husband or wife dies with no will, the spouse who survives is entitled to receive an intestate share of the estate, per F.S. 732.102.

Our Fort Lauderdale attorneys should note that even if the couple was separated, the surviving spouse is generally still entitled to that intestate share.

In cases where the only survivor is the spouse or when all children/ descendants belonged to both spouses, the surviving spouse will receive the entire property. However, if children/ descendants were not all shared by decedent and surviving spouse, then the surviving spouse will receive 50 percent of intestate estate. The rest will go into probate.

Cases involving the rights of surviving spouses may become a bit more complicated when surviving spouse is deemed a “pretermitted spouse.” This occurs when a will is made, but the testator (person who made the will) marries someone else who is not provided for in the will. In those cases, a pretermitted spouse may receive the same share of the estate as if decedent had died intestate – unless there is a will specifically stipulates otherwise. In cases where there is only a pretermitted spouse and no descendants, statute allows the pretermitted spouse to receive the entire estate – except where a will has designated assets to decedent’s other heirs.

Family Allowance

Florida Statute 732.402 outlines the right of a surviving spouse to receive a family allowance of up to $18,000 – paid in a lump sum or in installments – to help support the surviving spouse and lineal heirs.

This family allowance isn’t chargeable against any benefit or share otherwise passing to the surviving spouse or dependent heirs, unless the will states otherwise.

Homestead Rights of Surviving Spouses

Per Florida Constitution Article X Section 4c, there are restrictions on who is entitled to receive homesteaded property in the event the owner dies and leaves behind a living spouse or minor child. That living spouse will be entitled to receive a “life estate” in any Florida homesteaded property, and our Fort Lauderdale lawyers can help them assert this right.

A “life estate” is ownership of land for the duration of one’s life. When a homeowner dies, leaving behind a spouse, the spouse is entitled to life estate in any real estate that served as the couple’s primary home. The rest of that interest belongs to the deceased spouse’s descendants. This means even in cases where a deceased spouse stipulated in the will that his property should be left to someone other than the spouse, the surviving spouse will still be entitled to live in the home after death – so long as the will was drafted after the marriage. So surviving spouse can continue to reside in that home until death. The exception would be surviving spouse waived his or her rights in a marital agreement.

Elective Share/ Election Against a Will

F.S. 732.2035 holds that surviving spouses are entitled to 30 percent elective share of decedent spouse’s estate, as valued at the date of death. That includes:

  • Probate estate;
  • Pay on death, transfer on death and similar accounts,
  • Jointly-owned securities or accounts (based on amount withdrawable by decedent);
  • Real estate that is jointly-owned;
  • 50 percent tenants by entirety property;
  • Certain revocable transfers (including revocable living trusts);
  • Retained income interests and life estates;
  • Most retirement benefits;
  • Cash value of life insurance immediately before death;
  • Most gifts made 12 months before death;
  • Property transferred for elective share before decedent passed.

Debts could potentially negatively impact the value of elective share.

Exempt Property

Surviving spouse of decedent who lived in Florida at the time of death may be entitled to certain tangible property that is effectively exempt (per F.S. 732.402). That means it is exempt from all creditors of the estate – except perfected security interests. This property includes:

  • Household furniture and appliances up to $20,000 at the date of death;
  • Two personal automobiles in decedent’s name and regularly used by decedent and/ or family members.

Individuals can petition the court to make other property exempt as well. The deadline for filing exempt property is four months from the date of service of the Notice of Administration.

If your spouse recently died and you are not sure about your rights with the estate or other property, our probate attorneys can help.

Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (888) 267-2728 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.

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