Spouse Inheritance Rights in Miami, Florida

Florida provides some of the strongest protections in the country for surviving spouses. Regardless of what a will or trust says, a surviving spouse in Florida has certain rights that cannot be easily overridden. These protections include the elective share, homestead rights, exempt property, and a family allowance. Understanding these rights is essential for both estate planning and probate administration.

The Elective Share: 30% of the Estate

Under F.S. § 732.201 through 732.2155, a surviving spouse has the right to claim an elective share equal to 30% of the elective estate. This right exists regardless of what the decedent's will provides. Even if the will leaves the surviving spouse nothing, or leaves them less than 30%, the spouse can elect to take their statutory share instead.

The elective estate is broader than just 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

The broad definition of the elective estate is designed to prevent a spouse from being disinherited through the use of non-probate transfers. It ensures that the surviving spouse receives a meaningful share of the decedent's overall wealth, not just the assets that happen to pass through the will.

How to Elect the Elective Share

The surviving spouse must file an election with the probate court within the earlier of six months after the date of service of the notice of administration or two years after the decedent's death (F.S. § 732.2135). This is a strict deadline, and failure to file within this period results in a permanent waiver of the right.

The election is made by filing a written election in the probate proceeding. Once filed, the court calculates the value of the elective estate and determines whether the surviving spouse has already received at least 30% through other means (such as joint accounts, beneficiary designations, or distributions under the will). If the spouse has received less than 30%, they are entitled to the difference.

Homestead Rights

Florida's homestead protections are among the most powerful in the nation, and they provide significant rights to surviving spouses. Under Article X, Section 4 of the Florida Constitution and F.S. § 732.401, when a person dies leaving a surviving spouse and no minor children, the surviving spouse may elect to take either:

• A life estate in the homestead property, with a vested remainder to the decedent's descendants, or
• An undivided one-half interest in the homestead property as a tenant in common with the decedent's descendants

If the decedent leaves a surviving spouse but no descendants, the surviving spouse inherits the homestead property outright, in fee simple.

Critically, the homestead property cannot be devised to anyone other than the surviving spouse if the decedent is survived by a spouse or minor children, unless the spouse has waived this right (typically through a valid prenuptial or postnuptial agreement). This means that even if the will attempts to leave the home to someone else, the surviving spouse's homestead rights take priority.

Exempt Property

Under F.S. § 732.402, the surviving spouse is entitled to receive certain exempt property from the estate, regardless of the terms of the will. This includes:

• Household furniture, furnishings, and appliances in the decedent's usual place of abode, up to a net value of $20,000
• Two motor vehicles used regularly by the decedent or immediate family members, which do not exceed a combined gross vehicle weight of 15,000 pounds
• All qualified tuition programs authorized by Section 529 of the Internal Revenue Code

Exempt property takes priority over all claims against the estate except the family allowance, homestead rights, and the costs of administration. If the decedent's will does not provide for the surviving spouse, the exempt property entitlement still applies.

Family Allowance

Under F.S. § 732.403, the surviving spouse (and dependent children) are entitled to a reasonable family allowance during the administration of the estate. The family allowance is designed to provide support while the estate is being settled, which can take months or even years.

The allowance is not to exceed $18,000 and is payable from the estate's assets. It has priority over all claims against the estate other than the costs of administration, and it is in addition to any other rights the surviving spouse may have, including the elective share, homestead, and exempt property.

Pretermitted Spouse

A pretermitted spouse is a spouse who married the decedent after the decedent executed their will and who is not provided for in the will or by other means. Under F.S. § 732.301, a pretermitted spouse is entitled to receive a share of the estate equal to what they would have received had the decedent died intestate, unless:

• Provision for the spouse was made by prenuptial or postnuptial agreement
• The spouse is provided for in the will
• The will discloses an intention not to provide for the spouse

The pretermitted spouse's share is calculated after satisfying homestead, exempt property, and family allowance rights. In practice, this can result in the pretermitted spouse receiving a substantial portion of the estate, even if the decedent's will leaves everything to other beneficiaries.

Intestate Share of the Surviving Spouse

When a person dies without a valid will (intestate), the surviving spouse's share depends on whether the decedent had descendants. Under F.S. § 732.102:

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

Waiver of Spousal Rights

A surviving spouse can waive their inheritance rights through a valid prenuptial agreement or postnuptial agreement. Under F.S. § 732.702, a waiver must be in writing, signed by the waiving party, and executed in the presence of two subscribing witnesses. The waiver can cover any or all of the spouse's rights, including the elective share, homestead, exempt property, and family allowance.

A waiver executed before marriage is not enforceable unless both parties received fair disclosure of the other's assets and financial obligations, or the waiving party voluntarily signed the agreement after being given a reasonable opportunity to consult with independent counsel. Courts will scrutinize prenuptial waivers carefully, and a poorly drafted or unfair agreement may not be enforceable.

Contact a Florida Surviving Spouse Rights Attorney

Whether you are a surviving spouse seeking to understand and protect your rights, or an executor administering an estate that involves spousal claims, it is essential to have experienced legal guidance. The attorneys at Law Offices of Albert Goodwin, PA have extensive experience with Florida's spousal inheritance protections and can help you navigate the elective share process, homestead claims, and related issues.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.