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Florida Surviving Spouse Rights and The Importance of Timely Filings

Probate Information • Nov 23, 2020
post about Florida Surviving Spouse Rights and The Importance of Timely Filings

Every year, widows, widowers and surviving spouses inherit billions from Florida probates. Florida Surviving Spouse rights are very valuable for Florida estates. But most don’t want to leave money on the table. And you should know exactly how much you are entitled to. After all, the three most valuable rights a spouse has to a Florida estate are straightforward. First, Florida Homestead. Second, intestate share. Third Elective Share. Has your wife or husband recently passed away in Florida? Are you a surviving spouse? To read more FREE FLORIDA PROBATE COMMENTARY about rights of a surviving spouse, CLICK HERE. If you are the surviving spouse in an inheritance dispute in Florida, you may want to read Florida Statute 732.401 and a March 15, 2019 Second DCA opinion, Samad v. Pla.

Florida Surviving Spouse Rights: Probate Attorney John Pankauski helps with Florida surviving spouse rights.

Don’t Sit on Your Inheritance Rights

Florida law does not help those who sit on their rights. Florida Estate Law helps those who speak up and who EXERCISE their rights. Silence is often not a friend to surviving spouses’ inheritance rights.

Florida probate lawyers know that surviving spouses in Florida have many inheritance rights. However, it is important to act on those rights, and act quickly. John Pankauski, managing law partner at Pankauski Hauser Lazarus, always reminds prospective and current clients that the law doesn’t reward those who sit on their rights! In Florida probate proceedings, there are many deadlines that must be met. For example, surviving spouses must make certain elections within a certain time frame. In addition, objections or filings must be filed timely. In order to know the exact deadlines, you must be familiar with the Florida Statutes. This is why hiring an experienced probate or inheritance attorney, who handles probate matters all day every day, is a good idea. What happens if you miss a deadline? You may be out of luck!

Florida Statute 732.401— a must read

Florida Statute 732.401 explains that a surviving spouse in Florida takes a life estate in the homestead property UNLESS the surviving spouse elects to, instead, take an undivided one-half interest in the homestead as tenants in common. To read even more about this topic, CLICK HERE.

This Florida rule is very important to be familiar with if you are the surviving spouse, and there is a homestead property in Florida. Would you rather be allowed to live in the property and have control of the property until you pass away, or would you rather own an undivided interest in half of the property? Owning half of the property means that you would be co-owners with the decedent’s adult children or entitled heirs. You should consider whether or not you get along with the heirs of the estate. Do you want to sell the Florida property? What is best for you financially? What make sense? Ask your West Palm Beach probate lawyer to explain the pros and cons of both options in more detail.

As we mentioned above, many important inheritance rights in Florida have time restraints that must be complied with. Florida Statute 732.401 (2) says that, if a surviving spouse chooses to make the election to take an undivided one-half interest in the homestead, rather than a life estate, he or she must file that election within six months of the decedent’s death. Although there is an exception if a certain petition if filed by an attorney in fact or guardian of the property of the surviving spouse, that certain petition itself must also be filed within those six months. What happens if you decide you want the one-half interest in the Florida homestead, rather than the life estate, but you fail to file within the six months? Are you out of luck?

One Case All Spouses Should Read

Here, the surviving spouse in a Florida probate proceeding neither made the election to take an undivided one-half interest in the homestead nor filed a petition as described in 732.401(b) within the six-month period. At seven-and-a-half months, the surviving spouse moved for an extension of time to make the election, claiming excusable neglect. The trial court granted her request. The other party appealed. The appellate court decided that, because the surviving spouse failed to satisfy the requirements in section 732.401(2), the trial court erred as a matter of law in granting her the extension to file the election. Therefore, the Florida trial court’s decision was reversed.

To learn more about Florida Statute 732.401, surviving spouse inheritance rights and homestead, consider reading Samad v. Pla in its entirety. If you are looking to interview an experienced probate lawyer to help you get your inheritance, call (561) 514-0900 ext.101.