Florida Surviving Spouse Inheritance Rights: What is the Surviving Spouse’s Share of the Decedent’s Palm Beach Estate?

Uncategorized • Oct 24, 2018

What is Florida Statute 732.102? What should Florida probate attorneys handling West Palm Beach estate litigation know about this statute? Do you have to be legally married to the decedent at the time of his death to be deemed the surviving spouse? Is a surviving spouse in Florida entitled to his or her deceased spouse’s property? 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.

This opinion involved a probate 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.

If Shushan would have been found to be the surviving spouse of the decedent, what would she have been entitled to inherit from the decedent’s Florida estate? Would his six children still have inherited? Florida Statute 732.102 states a spouse’s share of an intestate estate. Your trust and estates lawyer in West Palm Beach should be very familiar with this statute.

732.102 Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:

(1) If there is no surviving descendant of the decedent, the entire intestate estate.

(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.

(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.

(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.