Florida law protects the right of surviving spouses over the estate of a deceased spouse, regardless of whether the decedent included specific language in his or her will. In this article, you will find the guide on surviving spouse rights in Florida.
Surviving Spouse Rights in Florida – An Introduction
Florida residents are not allowed to disinherit their spouses. The only way to “disinherit” a spouse is by executing a prenuptial or post-nuptial agreement in which the spouse waives his or her inheritance rights.
Homestead Property Rights
Article X, Section 4 of the Florida Constitution provides that “the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”
If the deceased spouse had lineal descendants, the surviving spouse is entitled to a life estate in the property. Depending on the case, a surviving spouse may elect to take an undivided one-half interest in the property while the other one-half passes to the decedent’s lineal descendants.
Under Florida Statutes §732.402(1), “if a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent as provided in this section, to be designated “exempt property.”
Examples of exempt property in Florida include household furniture, furnishings, and appliances in the decedent’s home up to $20,000, two motor vehicles, qualified tuition programs, and specific death benefits.
Florida Statutes §732.403 provides that “in addition to protected homestead and statutory entitlements, if the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs (…) are entitled to a reasonable allowance in money out of the estate for their maintenance during administration.”
The same statute specifies that “the allowance shall not exceed a total of $18,000.”
Under Florida Statutes §732.201, “the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.”
Please note that “the election does not reduce what the spouse receives if the election were not made, and the spouse is not treated as having predeceased the decedent.”
If the decedent died without a will, it does not restrict the rights of a surviving spouse to a share of his or her estate. Applied only to probate assets, Florida Statutes §732.102 provides that “the intestate share of the surviving spouse is:
- If there is no surviving descendant of the decedent, the entire intestate estate
- 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 entire intestate estate
- If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate
- 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, one-half of the intestate estate”