Can My Spouse Leave Me Nothing in His or Her Florida Will?

Does a surviving spouse have rights in Florida trust and estates law? Can my wife give her house to someone else in her Florida will? Can my husband leave me and our minor children nothing? What are spousal rights in Palm Beach probate litigation?

Florida Surviving Spouse Rights

• In Florida, a surviving spouse may have rights to property of a deceased spouse.
• What does this mean?
• This means that there are statutory minimum benefits to ensure that surviving family members are provided for, regardless of the decedent’s intent. In re Estate of Magee, 988 So.2d 1, 5-6 & n.3 (Fla.2d DCA 2007).
• What are these benefits?
• Homestead, elective share, and family allowances are three of the main rights of surving spouses in Florida.
• What if I made a deal with my spouse and waived my right to receive a statutory benefit?
• What if I waived my right to homestead in a prenuptial agreement?
• According to Florida court decisions, if your right to receive the benefit was properly waived in a marital agreement, you may be out of luck.
• However, you should speak to an estate litigator who can evaluate your specific case.

Homestead in Florida

• Article X, Section 4 of the Florida Constitution contains the law regarding homestead and homestead exemption.
• Homestead prevents a decedent from devising his or her residential home if the decedent is survived by a spouse and minor children, unless he devises it to his surviving spouse if there are no minor children.
• What does this mean?
• It means that, as a surviving spouse in Florida, you are entitled to at least a life estate in your spouse’s homestead.
• Could I be entitled to more than a life estate in the property?
• If you are in a situation where you receive a life estate rather than the entire homestead, a probate litigator can inform you of your options.
• Keep in mind that time is of the essence as there are many deadlines in the Florida probate process.

Elective Share

• In Florida probate law, the surviving spouse of a decedent domiciled in Florida can claim 30% of the decedent’s elective estate.Fla.Stat. §732.2065
• What is an elective esate?
• What assets do I, as the surviving spouse, receive 30% of?
• Click here to read statute Florida Statute §732.2035.
• Keep in mind that there are ways for a spouse to transfer assets before death, possibly leaving the surviving spouse penniless.
• Seeking advice from a probate lawyer West Palm Beach is the best way to ensure that you get what you are entitled to.

Family Allowance

• Family allowance may be able to assist surviving spouses and minor children of the decedent while assets are in probate.
• What is the family allowance limit in Florida?
• The limit is $18,000. Fla.Stat.§732.403

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