Blog

In Florida, spouses have certain rights to marital property after their partner passes away, regardless of what the decedent (the person who passed away) stated in their will. These surviving spousal rights are detailed in Florida Statute 732 Part II. What a spouse is entitled to can often become a point of contention with other surviving family members, especially for couples that have been married multiple times and have children from previous relationships. Below, we discuss surviving spouse rights in Florida and how they affect estate planning and administration.  

Surviving Spouse Rights in Florida: Elective Share

Under Florida law, spouses cannot disinherit their current spouse unless they voluntarily waive their surviving spousal rights in a previous arrangement, like a prenuptial agreement. Surviving spouses are entitled to 30% of the estate assets. If a decedent leaves their spouse less than 30% of the estate value, the surviving spouse can petition the court for the difference to receive their “elective share.” Surviving spouses must file this petition of entitlement within six months of the start of probate or within two years after their spouse passes away

Surviving Spouse Benefits

In addition to the elective share, Here are the other surviving spousal rights in Florida:

Joint Property

If the surviving spouse jointly owned property with the decedent, they will automatically receive ownership for assets that include “right of survivorship” clauses.

Personal Possessions

Surviving spouses are entitled to property exempt from probate that isn’t subject to a creditor claim. These assets may include personal belongings, furniture, appliances, and two cars worth up to a maximum of $20,000.

Homestead Property

A surviving spouse can remain living in the familial home for the rest of their lives as a life estate tenant. Or, the surviving spouse can opt to sell the property and receive 50% of the property’s value from the sale.

Family Allowance

The decedent’s spouse and children are entitled to a financial allowance to help ease the burden of everyday expenses and bills while the estate is in probate. The family allowance can be valued up to $18,000 and is a temporary arrangement while the estate is settled.

Social Security Death Benefits

A surviving spouse can receive some of the decedent’s social security benefits, starting at 71.5% of the decedent’s current social security benefit. This percentage increases the closer you are to retirement age when you apply for these benefits.

Surviving Spousal Rights for Intestate Estates

If the decedent passed away without a will, the estate becomes an “intestate,” and the surviving spouse may be entitled to receive at least 50% of the estate. The surviving spouse will receive the entire estate if the decedent has no children or if the children are the biological/adopted children of both the decedent and the surviving spouse. The surviving spouse is entitled to 50% of the estate if the decedent had children from a previous relationship. These laws can be complicated when applying them to your unique family situation. Call our estate planning and surviving spousal rights attorney in Orlando to help you navigate this process.

The Boutty Law Firm: Surviving Spousal Rights Attorney in Orlando

If you’re are a widow or widower, you have guaranteed rights to a share of the estate, even if your husband or wife didn’t leave you anything in their will. You may still be entitled to a share of the estate, even if you waived your surviving spousal rights in a prenuptial agreement. Contact The Boutty Law Firm at 407-622-1395 or make an appointment online to discuss your options.