In Florida, a surviving spouse benefits from several rights upon the death of his or her spouse. Both Florida Statutes and the Florida Constitution Rights mention the rights of a surviving spouse. Short of a well-drafted prenuptial or postnuptial agreement, it is impossible to disinherit your spouse in Florida. In this blog, Elaine McGinnis, P.A. refers to the surviving spouse as a female and the decedent as a male. Keep reading to learn the rights of the surviving spouse in Florida estate law:

When a decedent does not leave a Last Will and Testament, or when his Last Will and Testament is not updated, what happens to a surviving spouse?

Without a Will (Intestacy)
When a decedent passes away without a valid Last Will and Testament, the decedent’s estate is distributed pursuant to the laws of “intestacy”. The surviving spouse’s share of the intestate estate can be found in Section 732.102, Florida Statutes. In Florida, a surviving spouse is entitled to 100% of the estate of her deceased spouse when he passes away without a valid will if neither spouse has children. If either spouse does have children, distribution to the surviving spouse is as follows:

  • If the children of decedent are also the children of the surviving spouse, and neither the decedent nor surviving spouse has another child, the surviving spouse inherits 100% of the estate.
  • If either the decedent or the surviving spouse has another child that is not the child of both the decedent and surviving spouse, the surviving spouse inherits 50% of the estate.

Pretermitted Spouse (Forgotten Spouse)

When a decedent passes away with a valid Last Will and Testament, but the Will was executed before the decedent’s marriage, the surviving spouse is considered a “pretermitted spouse”. The law assumes that the decedent simply forgot to update his Will. The “forgotten” surviving spouse is entitled to inherit such amount that is equal to the surviving spouse’s inheritance under Florida laws of intestacy (see above), Section 732.301, Florida Statutes. The surviving spouse may take against the share of the intestate beneficiaries or devisees until her share is fully satisfied.

Exceptions to the pretermitted spouse statute are:

  1. Valid prenuptial or postnuptial agreement wherein the surviving spouse waived her intention to inherit from decedent;
  2. The surviving spouse is provided for in the Will; or
  3. The decedent states a clear intention to disinherit his surviving spouse in his Will

What happens to a surviving spouse when decedent leaves a Last Will and Testament that disinherits his surviving spouse?

Elective Share

When a decedent passes away leaving a Will that disinherits his spouse, either by omission or intention, the surviving spouse may claim an elective share of his estate. In Florida, the elective share is the amount equal to 30% of the elective estate, Section 732.2065, Florida Statutes. The calculation to determine the elective estate is beyond the scope of this article, but it is important to note that the elective estate reaches outside the decedent’s probate estate, including but not limited to, the following types of property:

  • Property owned by the decedent with a “payable on death”, “transfer on death”, “in trust for”, or such similar designation;
  • Property owned by the decedent as joint tenants with right of survivorship;
  • Net cash surrender value of any life insurance policy(s) on the decedent’s life immediately prior to his death; and
  • Property transferred by decedent within the one-year period immediately prior to his death, (with exceptions).

A complete list of property entering into the elective estate can be found at Section 732.2035, Florida Statutes. Although valuing the elective estate can be quite complicated, it is important for the practitioner to determine the amount, (to the extent possible), before determining the best option for the surviving spouse.

Consider the elective share in the case of a pretermitted spouse: surviving spouse has a child of her own from a prior marriage. Deceased spouse did not update his Will after his marriage to surviving spouse. Decedent leaves his entire estate to his siblings in his Will. Surviving spouse is treated as a pretermitted spouse, inheriting 50% of the probate estate. The probate estate includes a $100k money market account. Therefore, surviving spouse inherits $50k.

Decedent owned the following assets prior to his death:

  • A savings account, $100k, payable on death to his mother;
  • A money market account, $100k, in his name alone; and
  • Two insurance policies on his life with a net cash surrender value totaling $400k, payable to his siblings as primary beneficiaries

In this example, surviving spouse could claim $180k as the elective share, (30% of $600k elective estate), opposed to inheriting $50k as the pretermitted spouse. Therefore, it is important to consider the entirety of the elective estate in determining how to proceed. Nevertheless, after carefully calculating each option, it is also important to advise a client regarding the time and expense of filing an elective share claim, whether discovery may be involved, and the likelihood of collecting the elective share, (i.e. payable on death accounts or accounts with beneficiary designations that have already been distributed).

Homestead Property

Florida has a strong public policy of protecting the family home. Homestead property cannot be devised if there is a surviving spouse or a minor child, except to the surviving spouse if there is no minor child, Article X, Section 4 (c), Florida Constitution. If decedent leaves his homestead to any devisee other than his surviving spouse, the devise fails and the homestead property passes pursuant to the laws of intestacy, Section 732.401, Florida Statutes.

If decedent is survived by lineal descendants, the surviving spouse inherits a life estate in the homestead property and the remainder passes to decedent’s lineal descendants. Instead of a life estate, surviving spouse may elect a one-half interest in the homestead property as tenants in common with decedent’s living lineal descendants. If surviving spouse chooses the later, her election has to be filed within six months from the date of death of decedent, and the form must comply with the requirements of Section 732.401 Florida Statute.

It is important to consider the pros and cons of life estate ownership against ownership as tenants in common, particularly with regard to the relationship between the surviving spouse and decedent’s lineal descendants. Further, if surviving spouse chooses to elect ownership as tenants in common, the practitioner must be mindful of the six month period to file the election, or file a request for an extension, which is permitted under the statute.

A surviving spouse receives the homestead property as exempt property. Despite the homestead being outside of the probate estate, an Order Determining Homestead still must be obtained to show the change in title.

Want to learn about how this could impact your surviving spouse? Be prepared!Contact Attorney Elaine McGinnis, an experienced estate lawyer in Tampa.

What else is left for a surviving spouse?

Family Allowance
Pursuant to Section 732.403, Florida Statutes, a surviving spouse of a Florida decedent may claim a reasonable allowance for her support and maintenance during the administration of the decedent’s estate. This amount cannot exceed $18,000. The family allowance is in addition to any other benefit or share that the surviving spouse receives, unless the decedent’s Will states otherwise.
Exempt Property

Pursuant to Section 732.402, a surviving spouse of a Florida decedent is entitled to the following as exempt personal property:

  • Household furniture, furnishings, and appliances up to a net value of $20,000 as of the date of death
  • Two motor vehicles
  • Qualified tuition programs

Again, exempt property is in addition to family allowance, homestead property, intestate property, and the elective share, as applicable.

Community Property

Finally, although Florida is not a community property state, Florida has adopted the “Florida Uniform Disposition of Community Property Rights at Death Act”, Sections 732.216732.228, Florida Statutes.  This Act states, in summary, that one-half of any property acquired as community property shall not be subject to devise by decedent and shall pass to the surviving spouse, in addition to an elective share claim by surviving spouse, Section 732.219, Florida Statutes.  Because one-half of community property is an additional entitlement under Florida law, it is critical for the attorney to question the surviving spouse regarding the length of marriage, whether the couple ever lived in a community property state, and whether, and to what extent, property was acquired in such state.

Learn Your Rights from Elaine McGinnis, P.A.
A surviving spouse has several rights under Florida law. The decedent merely needs to be a Florida resident for his surviving spouse to benefit, and the surviving spouse must timely assert her claim(s). Planning is key to preventing unintended distribution of assets. Florida is home to many senior citizens and it is very important to counsel clients regarding the legal effects of marriage at death. A carefully drafted prenuptial or postnuptial agreement should be part of the conversation of any carefully considered estate plan. Contact our Tampa estate attorney to learn more!