Are Widows Guaranteed Rights Over an Estate in Florida?

Widows/Widowers should know their rights and limitations under Florida probate law.

The last thing that a grieving partner wants to do in the wake of the death of their spouse is worry about fighting for rights in their deceased spouse’s estate. Depending on the prior preparation or utilization of various estate planning tools, a widow/widower may be unsure of what their rights are in their deceased spouse’s estate. This article seeks to help answer some initial questions about what rights widows/widowers have to their deceased spouse’s Florida estate.

Florida Probate Law Guarantees Some Rights to Widows/Widowers

It is no secret that the Florida probate code/process can be convoluted, complicated, and take a long time to navigate through. However, a surviving spouse will be off to a good start if they understand that, yes, they are entitled to some rights under the code. However – if some of these rights are not exercised or asserted in a timely manner, then they will not be guaranteed.

In most circumstances, surviving spouses have some guaranteed inheritance rights. These rights may be validly waived via properly entered into and executed legal agreements that took place before the end of life. These agreements include, for instance, a prenuptial agreement or postnuptial agreement that was voluntarily and knowingly entered into that specifies that surviving spouse's inheritance rights have been waived.

In Florida, if there is no valid prenuptial or postnuptial agreement, a surviving spouse is entitled to the following, whether the decedent died with a will or without a Will:

Homestead – If the decedent dies with no descendants (children, grandchildren, etc.), the homestead property passes to the surviving spouse. If the decedent is survived by a spouse and one or more descendants, the surviving spouse is entitled to a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes. This essentially means that the surviving spouse is entitled to live in the homestead property until his or her death, and at the death of the surviving spouse the property will be owned by the descendants of the decedent. The surviving spouse will be responsible for payment of real estate taxes, maintenance and repairs on the property, and insurance related to the property. In lieu 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 remainder beneficiaries. This election must be made within six months after the decedent’s death. Accordingly, the surviving spouse will want to carefully but quickly evaluate the situation to determine whether he or she would be best served by receiving the life estate or making the election to receive the one-half interest. An experienced estate planning attorney can help a surviving spouse make this determination.

The homestead property is not technically a probate asset in Florida, so this protection for the surviving spouse exists in addition to the other protections discussed here.

Exempt Property – In addition to protected homestead, property passing to a spouse under the decedent’s Will, property passing to a spouse by intestate succession, and other statutory entitlements, a surviving spouse is entitled to certain “exempt” property of the decedent. Exempt property includes up to $20,000 in furniture, furnishings, and appliances in the decedent’s primary residence; up to two motor vehicles (subject to statutory requirement such as maximum weight of the vehicles and regular use of the vehicles); certain qualified tuition programs such as 529 plans and Florida Prepaid College plans; and benefits paid to school teachers and administrators pursuant to the statute. To receive the protections of the exempt property statute, a surviving spouse must petition the probate court for determination of the exempt property within certain statutory timelines. Once property is determined exempt property, it will be excluded from the value of the residuary estate, intestate shares, elective shares, or pretermitted spouse shares are determined.

Elective Share – Unless there is a valid prenuptial or postnuptial agreement in place, a surviving spouse cannot be disinherited by his or her spouse by Will or Trust . If a spouse has disinherited his or her spouse in the Will or Trust or left the spouse less than 30% of the elective estate assets, the surviving spouse is entitled to an elective share of the estate, equal to thirty percent of the elective estate. In order to receive this share, the surviving spouse must make the election to take the elective share within six months or receiving a Notice of Administration, or two years after the death of the spouse.

The decedent’s “elective estate” is not the same as his or her probate estate. In Florida, a decedent’s elective estate includes:

Spousal Allowance - In Florida, a surviving spouse may be entitled to an additional share known as Family Allowance. If the decedent was supporting the spouse or lineal heirs, or was obligated to support the spouse or lineal heirs, the spouse may be entitled to an allowance not to exceed $18,000 during the probate administration. This allowance is not automatic; a petition must be filed and the court must enter a corresponding order. Further, the reasonableness of the amount requested must be established.

Pretermitted spouse – If the decedent creates a Will , and then later gets married, the surviving spouse may be entitled to an intestate share (see below). If the Will indicates that the intent is to disinherit the spouse, otherwise provides for the spouse, or if there is a valid prenuptial or postnuptial agreement, then this provision will not apply. 

What if a Spouse Passes Away Intestate?

When a person dies without a Will, the estate is considered “intestate.” In Florida, when a person dies intestate and without a valid prenuptial or postnuptial agreement, a surviving spouse is entitled to a share of the estate. The share of the estate that the spouse is entitled to depends on whether the decedent and/or surviving spouse had surviving descendants, and the make-up of those descendants. The rules are as follows:

  1. If there is no surviving descendant of the decedent, the spouse receives the entire estate.
  2. If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the spouse receives the entire estate.
  3. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the spouse receives one-half of the estate.
  4. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, the spouse receives one-half of the estate.

Contact Kruse Law in St. Petersburg Florida

Family members have a lot to shoulder in the period after their loved one’s death, and the probate process can feel momentous, complicated, and overwhelming. Kruse Law can help you navigate through every wrinkle of the legal landscape and advise you on how to best protect your interests. Contact our office today to speak with a dedicated estate planning attorney about your own case.