Surviving Spouse Rights in Miami, Florida

Florida law provides surviving spouses with a comprehensive set of protections that are among the most robust in the United States. These rights exist to ensure that a surviving spouse is not left destitute by a deceased spouse's estate plan, and they apply regardless of what the will or trust may say. This guide covers every major right available to a surviving spouse under Florida law, including the elective share, homestead protections, exempt property, family allowance, intestate share, and the circumstances under which these rights can be waived.

The Elective Share

The elective share is the cornerstone of surviving spouse protection in Florida. Under F.S. § 732.201 through 732.2155, a surviving spouse has the irrevocable right to claim 30% of the elective estate, regardless of the provisions of the decedent's will or trust.

What Is the Elective Estate?

The elective estate is not limited to the assets that pass through probate. It is a comprehensive calculation that includes virtually all assets the decedent owned or controlled at death, as well as certain transfers made during life. Under F.S. § 732.2035, the elective estate includes:

The decedent's probate estate — all assets that pass under the will or by intestacy, reduced by expenses of administration, enforceable claims, and mortgages or liens
Revocable trust assets — the value of assets held in any revocable trust created by the decedent during life
Payable-on-death accounts — bank accounts, retirement accounts, and other assets with designated beneficiaries other than the estate
Jointly held assets — the decedent's fractional interest in assets held as joint tenants with right of survivorship or tenants by the entirety
Transfers within one year of death — certain irrevocable transfers made during the year before death, to the extent they exceed $14,000 per donee
Property subject to a general power of appointment — assets over which the decedent held a general power of appointment at death
Life insurance and annuities — proceeds payable to beneficiaries other than the estate, to the extent of the decedent's net contributions

The broad scope of the elective estate prevents a spouse from using non-probate transfers to circumvent the surviving spouse's rights. Even if the decedent placed all assets in a revocable trust, named beneficiaries on all accounts, and left nothing to pass through probate, the surviving spouse can still claim 30% of the total.

How the Elective Share Is Calculated

The calculation involves several steps:

Determine the total value of the elective estate by adding all of the categories listed above
Multiply the total by 30% to determine the elective share amount
Credit against the elective share any assets the surviving spouse has already received from the decedent, whether through the will, trust, joint ownership, beneficiary designations, or other means
If the credits are less than 30%, the surviving spouse is entitled to the shortfall, which is paid from the remaining estate assets

If the surviving spouse has already received 30% or more through other means, the election has no practical effect.

Filing the Election

The surviving spouse must file the 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 date of death

Under F.S. § 732.2135, these deadlines are strictly enforced. Failure to file within the applicable period results in a permanent loss of the right to elect. The election is irrevocable once filed.

Elective Share and Incapacitated Spouses

If the surviving spouse is incapacitated, a court-appointed guardian or attorney-in-fact may file the election on the spouse's behalf with court approval. The court will consider whether the election is in the best interest of the surviving spouse before authorizing it.

Homestead Rights

Florida's homestead protections are enshrined in the Florida Constitution (Article X, Section 4) and are some of the strongest property protections in the country. They provide the surviving spouse with significant rights to the marital home.

Devise Restrictions

If the decedent owned a homestead property and is survived by a spouse or minor child, the homestead cannot be devised to anyone other than the surviving spouse. Under F.S. § 732.4015, a devise of homestead that is not to the surviving spouse is void if the decedent is survived by a spouse or minor children, unless the spouse has waived homestead rights in the manner provided by law.

This restriction means that even if the decedent's will leaves the home to a child, a friend, or a charity, the devise fails, and the surviving spouse takes under the default provisions of the statute.

What the Surviving Spouse Receives

Under F.S. § 732.401, if the decedent is survived by a spouse and descendants:

The surviving spouse may elect to take a life estate in the homestead, with a vested remainder to the decedent's descendants, or
The surviving spouse may elect to take an undivided one-half interest in the homestead as tenant in common with the decedent's descendants

If the decedent is survived by a spouse but no descendants, the surviving spouse receives the homestead in fee simple (outright ownership).

Homestead Creditor Protection

Florida homestead is also protected from the claims of most creditors. Under Article X, Section 4 of the Florida Constitution, the homestead is exempt from forced sale to satisfy debts, with limited exceptions for property taxes, mortgages, and certain construction liens. This protection extends to the surviving spouse after the decedent's death.

Exempt Property

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

Household furniture, furnishings, and appliances in the decedent's usual place of abode, up to a net value of $20,000 as of the date of death
Two motor vehicles that were regularly used by the decedent or immediate family members, provided the vehicles do not individually exceed a gross vehicle weight of 15,000 pounds
All qualified tuition programs (Section 529 plans) owned by the decedent

The right to exempt property has priority over all claims against the estate except:

The family allowance
Homestead rights
Costs and expenses of estate administration
Reasonable funeral expenses

If there is no surviving spouse, the decedent's minor children are entitled to the exempt property in equal shares.

Family Allowance

The family allowance under F.S. § 732.403 provides the surviving spouse and the decedent's dependent children with financial support during the estate administration. The allowance of up to $18,000 is payable from the estate and has priority over all claims against the estate other than costs of administration.

The family allowance is designed to bridge the financial gap during the probate process, which can take months or years to complete. It is in addition to all other rights of the surviving spouse, including the elective share, homestead, and exempt property. The personal representative may pay the family allowance in a lump sum or in periodic installments.

Intestate Share

When a person dies without a will (intestate), the surviving spouse's share of the estate is determined by F.S. § 732.102. The share depends on the family structure:

No descendants: The surviving spouse receives the entire intestate estate.
All descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants: The surviving spouse receives the entire intestate estate.
One or more descendants are not descendants of the surviving spouse: The surviving spouse receives one-half of the intestate estate.
The surviving spouse has one or more descendants who are not descendants of the decedent: The surviving spouse receives one-half of the intestate estate.

The intestate share is separate from and in addition to the surviving spouse's rights to homestead, exempt property, and the family allowance.

Pretermitted Spouse

A pretermitted spouse is a person who married the decedent after the decedent's will was executed and who is not provided for in the will. Under F.S. § 732.301, a pretermitted spouse receives a share of the estate equal to what they would have received had the decedent died intestate, unless:

Provision for the spouse was made or waived by a 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 accounting for homestead, exempt property, and family allowance. This provision protects spouses from a situation where the decedent simply forgot to update their will after remarrying.

Waiver of Surviving Spouse Rights by Prenuptial Agreement

All of the rights discussed above can be waived by the surviving spouse through a valid prenuptial or postnuptial agreement. Under F.S. § 732.702, a waiver must meet the following requirements to be enforceable:

It must be in writing
It must be signed by the waiving party in the presence of two subscribing witnesses
It must have been executed voluntarily, with the waiving party having had a reasonable opportunity to consult with independent counsel
There must have been fair disclosure of the other party's assets, income, and financial obligations, or the waiving party must have voluntarily signed without such disclosure

Scope of the Waiver

A waiver can be broad or narrow. It may waive all spousal rights (elective share, homestead, exempt property, family allowance, and intestate share) or only some of them. The specific language of the agreement controls which rights are waived. Courts construe waivers strictly, so ambiguous language may result in the waiver being limited to the rights that are specifically and clearly addressed.

Challenging a Prenuptial Waiver

A surviving spouse or their representative can challenge a prenuptial waiver on several grounds:

Lack of fair disclosure. If the decedent failed to disclose the nature and extent of their assets and financial obligations, the waiver may be unenforceable.
Lack of voluntariness. If the waiving spouse was pressured, coerced, or not given adequate time to review the agreement and consult with counsel, the waiver may be set aside.
Fraud or duress. If the decedent made material misrepresentations about their financial situation or used threats to obtain the waiver, it may be voidable.
Improper execution. If the waiver was not signed in the presence of two subscribing witnesses, it does not meet the statutory requirements.

Interaction of Surviving Spouse Rights

The various rights available to a surviving spouse in Florida can interact in complex ways. Key principles include:

The elective share is reduced by the value of assets the surviving spouse receives through other means, including homestead, exempt property, beneficiary designations, and gifts under the will
Homestead and exempt property rights exist independently of the elective share and the will
The family allowance is in addition to all other rights and has the highest priority after administration expenses
A surviving spouse may elect the elective share even if they also receive homestead, exempt property, and a family allowance — but the value of those other benefits is credited against the 30% calculation

Understanding how these rights work together requires careful analysis of the entire estate, including both probate and non-probate assets.

Contact a Florida Surviving Spouse Rights Attorney

Whether you are a surviving spouse seeking to protect your rights, an executor navigating spousal claims, or a couple planning an estate that addresses the surviving spouse's entitlements, the attorneys at Law Offices of Albert Goodwin, PA can provide the experienced guidance you need. We handle elective share elections, homestead disputes, prenuptial agreement challenges, and all other matters involving surviving spouse rights throughout South Florida.

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.