Florida Surviving 
Spouse Rights

Florida Surviving Spouse Rights

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Understanding the Legal Protections Available After the Death of a Husband or Wife

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Losing a spouse is one of life's most difficult experiences. During that time of grief, surviving spouses are often confronted with legal questions about the family home, bank accounts, retirement assets, and the administration of the estate.

 

Many people assume that a surviving spouse automatically inherits everything. Under Florida law, that is not always true.

Florida provides surviving spouses with numerous legal protections, but those rights depend upon many factors, including:

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• Whether the deceased spouse had a Will

• Whether a Revocable Trust was used

• Whether there are children from prior relationships

• How assets were titled

• Whether beneficiary designations exist

• Whether the property is considered Homestead

• Whether valid prenuptial or postnuptial agreements were signed

 

Understanding these rights can help surviving spouses protect their financial future while ensuring that the estate is administered correctly.

 

Major Rights of a Florida Surviving Spouse

 

Florida law provides surviving spouses with several important statutory rights that cannot simply be ignored during estate administration.

 

These rights may include:

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• Homestead Rights

• Elective Share

• Family Allowance

• Exempt Property

• Intestate Inheritance Rights

• Preference to Serve as Personal Representative

• Rights Regarding Funeral Arrangements

• Rights to Challenge Estate Administration

 

Each serves a different purpose.

 

Homestead Rights

 

Florida's homestead laws are among the strongest in the nation and often override the terms of a Will. When a married Florida resident dies owning protected homestead property, the Florida Constitution and Florida Statutes determine who inherits the property and what rights the surviving spouse receives.

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Depending on the family's circumstances, the surviving spouse may:

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• Receive full ownership of the homestead.

• Receive a life estate in the homestead.

• Have the right to elect an undivided one-half interest in the homestead as a tenant in common.

• Share ownership with the decedent's descendants under Florida law.​

 

In addition, if the decedent is survived by a spouse or minor child, Florida law limits the owner's ability to leave the homestead to someone else by Will.

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Because homestead rights are governed by unique constitutional and statutory provisions, errors during probate can permanently affect ownership of the property.

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Election Between a Life Estate and a One-Half Interest

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When a decedent is survived by both a spouse and one or more descendants, Florida law generally provides the surviving spouse with an important election.

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The surviving spouse may choose to receive:

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• A life estate in the homestead, with the descendants receiving the remainder interest upon the spouse's death; or

• An undivided one-half interest as a tenant in common, with the descendants owning the remaining one-half interest immediately.

 

This election is not automatic. The surviving spouse must make the election within the time allowed by Florida law. If no timely election is filed, the surviving spouse generally receives the default life estate.

 

The decision is irrevocable once made and can have significant legal, financial, tax, and practical consequences. Factors such as the surviving spouse's age, health, financial needs, relationship with the descendants, and future plans for the property should all be considered before making this election.

 

Elective Share

 

A spouse cannot always be completely disinherited.

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Even if a Will leaves the surviving spouse nothing, Florida law may allow the surviving spouse to claim an Elective Share.

Generally speaking, the elective share equals 30% of the Elective Estate, which may include far more than assets passing through probate.

 

The Elective Estate can include certain:

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• Revocable Trust assets

• Jointly owned property

• Pay-on-Death accounts

• Transfer-on-Death accounts

• Certain retirement benefits

• Certain life insurance interests

 

Calculating the elective share can become extremely complicated, particularly for larger estates or blended families.

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Family Allowance

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Florida law also provides a Family Allowance intended to assist a surviving spouse and certain dependent children during estate administration.

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The court may award up to $18,000, which is generally paid before distributions to beneficiaries.

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This allowance is separate from inheritance rights and may be available even when the surviving spouse receives other property.

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Exempt Property

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Certain personal property may pass directly to the surviving spouse as Exempt Property.

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Examples often include:

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• Household furnishings

• Furniture

• Appliances

• Certain automobiles

• Qualified educational savings accounts

 

These assets generally do not reduce the surviving spouse's elective share.

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Intestate Rights

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If someone dies without a valid Will, Florida's intestacy laws determine who inherits.

 

A surviving spouse may inherit:

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• The entire estate

• One-half of the estate

• A share together with the deceased spouse's descendants

 

The amount depends largely upon whether:

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• Either spouse had children from another relationship; and

• Whether all descendants are shared between the spouses.

 

Every family situation is different.

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Preference to Serve as Personal Representative

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When there is no valid nomination—or when the nominated Personal Representative cannot serve—the surviving spouse often has statutory priority to serve as Personal Representative.

 

Serving as Personal Representative allows the spouse to:

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• Collect estate assets

• Pay creditors

• Work with attorneys and accountants

• Sell estate property when authorized

• Distribute assets to beneficiaries

 

This role carries important fiduciary duties.

 

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Rights Concerning Funeral and Burial Decisions

 

Florida law generally gives the surviving spouse priority to make funeral and burial decisions unless another legally enforceable designation controls.

 

These decisions may include:

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• Burial or cremation

• Funeral arrangements

• Final disposition of remains

 

Disputes occasionally arise when adult children disagree with a surviving spouse regarding final arrangements.

 

Rights in Revocable Trusts

 

Many Florida families use Revocable Living Trusts instead of relying solely upon Wills.

 

However, placing assets into a trust does not automatically eliminate surviving spouse rights.

 

Depending upon the circumstances, a surviving spouse may still have rights involving:

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• Elective Share

• Homestead

• Trust administration

• Fiduciary obligations

• Beneficiary distributions

 

Trusts should always be designed with Florida surviving spouse laws in mind.

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Prenuptial and Postnuptial Agreements

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Many surviving spouse rights may be modified—or waived—through properly drafted:

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• Prenuptial Agreements

• Postnuptial Agreements

 

These agreements often address:

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• Elective Share

• Homestead rights

• Estate distributions

• Family allowance

• Exempt property

 

Whether such agreements are enforceable depends upon Florida law and the specific facts surrounding their execution.

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Common Situations That Require Legal Advice

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Estate administration becomes significantly more complicated when:​​​​​

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• There is a second marriage.

• One or both spouses have children from prior relationships.

• Significant retirement accounts exist.

• The deceased owned a business.

• A Revocable Trust was used.

• Homestead property is involved.

• Beneficiaries disagree.

• Someone believes a Will is invalid.

 

These situations often involve overlapping probate, trust, tax, and property law issues.

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We Can Help

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Determining a surviving spouse's legal rights often requires careful analysis of Florida probate law, homestead law, trusts, beneficiary designations, and marital agreements.

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At Kaney Law, we help surviving spouses, Personal Representatives, trustees, and beneficiaries understand their rights, resolve disputes, and administer estates throughout Florida.

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If you have questions about your rights after the death of a spouse, we invite you to schedule a consultation to discuss your family's specific circumstances.