Florida Surviving Spouse Inheritance Rights: What do Surviving Spouses Inherit in Florida?

If my husband dies, am I entitled to any of his Florida property or money? Can my wife leave her Florida home to someone else in her will or trust? Does a surviving spouse have rights according to Florida probate law? Can my husband leave me and our minor children nothing? What rights do I have as a spouse in Florida? How do I prove that I am the surviving spouse of the decedent? What if I am recognized as married to the decedent  in a foreign country but not here in Florida? If you believe you are entitled as a surviving spouse to a Florida estate, you may want to read a March 2017 Second DCA opinion, Cohen v. Shushan. You should especially read this opinion if the marriage between you and the decedent is only recognized in a foreign country.

In Florida, a surviving spouse may have rights to property of a deceased spouse. What does this mean? Palm Beach Probate litigators know that this means 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? Your trust and estates lawyer will tell you that Homestead, elective share, and family allowance are three of the main rights of surviving 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 prior Florida court opinions, 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 a Florida estate litigator who can evaluate your specific case.

Cohen v. Shusha involves a trust and estates dispute over whether a reputed surviving spouse was really the surviving spouse of the decedent for purposes of inheriting from the decedent’s Florida intestate estate.  Here, the decedent’s daughter, Diana Cohen, filed a petition for intestate administration of her father’s Florida assets. The daughter named her father’s six children as the only heirs to his Florida estate. Mali Ben Shushan, the decedent’s reputed spouse in Israel, responded to the petition. She argued that under Israeli law, she was considered the decedent’s wife for the purposes of inheritance and, therefore, was entitled to a surviving spouse’s share of the Florida estate.The trial court agreed. The Second DCA reversed and remanded. To read the entire case and find out why the Second DCA did not find Shushan to be the surviving spouse, click here.