What a Surviving Spouse Is Entitled To in Florida: and the Deadlines That Can Cut Those Rights Off

Florida law gives a surviving spouse a set of rights that no will or trust can easily take away: the elective share, homestead rights, exempt property, and a family allowance. But several of these rights come with hard filing deadlines. Miss one, and a right the statutes guarantee you can be lost for good. Here is what you are entitled to, statute by statute, and when the clock runs out.

The Elective Share: 30% of the Elective Estate

Under F.S. 732.2065, the elective share is an amount equal to 30 percent of the elective estate. This right exists no matter what the will says. If the will leaves you nothing, or leaves you less than 30 percent, you can elect to take the statutory share instead.

The elective estate reaches well beyond the assets that pass through probate. It includes:

• The decedent's probate estate (minus certain deductions)
• Revocable trust assets
• Assets held in joint tenancy with rights of survivorship, to the extent of the decedent's contribution
• Payable-on-death and transfer-on-death accounts
• Retirement accounts, annuities, and life insurance payable to someone other than the estate
• Certain transfers made within one year of death
• Property over which the decedent held a general power of appointment

This broad reach is deliberate. It stops a spouse from being disinherited through beneficiary designations and trusts that never touch probate.

The election is not automatic. The surviving spouse must file a written election in the probate proceeding within the earlier of six months after service of the notice of administration or two years after the decedent's death. Filing late means the elective share is permanently waived. Once the election is filed, the court values the elective estate and determines whether you have already received at least 30 percent through joint accounts, beneficiary designations, or the will; if not, you are entitled to the difference.

Homestead Rights

Under F.S. 732.401, when the decedent leaves a surviving spouse and descendants, the surviving spouse takes a life estate in the homestead, with the remainder passing to the descendants per stirpes. Instead of the life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common with the descendants.

If the decedent leaves a surviving spouse but no descendants, the surviving spouse takes the homestead outright.

The choice between a life estate and a one-half interest matters. A life estate means you can live in the home for life but cannot sell the full property alone, and you and the remaindermen share the burdens of ownership. A half interest as tenant in common gives you an ownership stake you can sell or pass on, but you co-own with the descendants. Which option is better depends on your age, finances, and relationship with the other heirs.

Exempt Property and the Family Allowance

Under F.S. 732.402, the surviving spouse is entitled to exempt property from the estate regardless of what the will says, including:

• Household furniture, furnishings, and appliances in the decedent's usual place of abode, up to a net value of $20,000
• Two motor vehicles regularly used by the decedent or immediate family members, not exceeding a combined gross vehicle weight of 15,000 pounds
• Qualified tuition program funds
• Certain military survivor benefits

Separately, under F.S. 732.403, the surviving spouse and the decedent's dependent lineal heirs are entitled to a family allowance for support during administration of the estate, an amount not to exceed a total of $18,000. Because probate can take months or longer, this allowance keeps money flowing to the family while the estate is being settled. Both exempt property and the family allowance are in addition to the elective share, homestead rights, and anything you receive under the will.

Married After the Will Was Signed: The Pretermitted Spouse

Under F.S. 732.301, a spouse who married the testator after the will was executed receives a share of the estate equal to what he or she would have received had there been no will at all, unless:

• Provision for the spouse was made by a marital agreement,
• The spouse is provided for in the will, or
• The will shows an intent not to provide for the spouse

This comes up constantly with older wills. A will signed years before a second marriage that leaves everything to children from a first marriage does not simply disinherit the new spouse, the pretermitted spouse statute steps in, and that spouse may take a substantial share of the estate on top of homestead, exempt property, and family allowance rights.

When There Is No Will: The Intestate Share

If the decedent died without a valid will, F.S. 732.102 controls the surviving spouse's share:

• If there are no descendants, the surviving spouse takes the entire intestate estate.
• If all of the decedent's descendants are also descendants of the surviving spouse, and the spouse has no other descendants, the spouse still takes the entire estate.
• If the decedent had descendants who are not also descendants of the surviving spouse (or the spouse has descendants who are not the decedent's), the surviving spouse takes one-half of the intestate estate.

Blended families should pay close attention: the presence of stepchildren on either side is what drops the spouse's share from everything to one-half.

The Deadlines That Cut Rights Off

Spousal rights in Florida are strong, but they are not self-executing. Two deadlines do the most damage when missed:

• Objecting to the will: Under F.S. 733.212, once you are served with the notice of administration, objections to the validity of the will must be filed within 3 months of service, or they are forever barred. If you believe the will is the product of undue influence, fraud, or incapacity, that three-month window is your only chance.
• Claiming the elective share: The election must be filed by the earlier of six months after service of the notice of administration or two years after death. There is no do-over.

The notice of administration is easy to overlook among the paperwork that follows a death, but it is the document that starts these clocks. If you have received one, get advice before the deadlines pass, not after.

One more way rights are lost: waiver. A spouse can give up the elective share, homestead, exempt property, and family allowance through a valid prenuptial or postnuptial agreement. If you signed a marital agreement, whether it is enforceable (and exactly which rights it waives) should be reviewed before you assume anything about your position.

Talk to a Florida Surviving Spouse Rights Attorney

If you are a surviving spouse trying to protect what Florida law guarantees you, or a personal representative handling an estate with spousal claims, the deadlines above make early advice essential. The attorneys at the Law Offices of Albert Goodwin, PA handle elective share elections, homestead determinations, pretermitted spouse claims, and will contests throughout Florida. Contact us to schedule a consultation before your window to act closes.