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Surviving Spouse Inheritance Rights and Homestead

Probate Information Oct 28, 2020
post about Surviving Spouse Inheritance Rights and Homestead

Does a surviving spouse have rights when it comes to inheritances? Yes ! Those inheritance rights can be worth billions of dollars in Florida ! No exaggeration. A wife or a husband can, at first, be dis-inherited. But, if you did not sign a prenup you can claim your inheritance. Sometimes, the window of time is very short. We have previously provided solid Florida law commentary on inheritances and personal financial data. After all, you need to know where your inheritance is coming from. We also blogged about a surviving spouse’s rights. What happens if my husband doesn’t include me in his Florida will or trust? What happens to my wife’s homestead property now that she has passed away? Can my husband’s adult children take away the house that I live in just because it was only in my husband’s name?

Inheritance rights and homestead in Florida can be very valuable. But don’t wait too long.

Florida Surviving Spouse Rights

In Florida, surviving spouses have inheritance rights to property of a deceased spouse.  In fact, there are statutory minimum benefits to ensure that surviving family members are provided for, regardless of the decedent’s intent. 

What are these benefits? Homestead, elective share, and family allowances are three of the main inheritance rights of surviving spouses in Florida.

Are there exceptions? As with almost every Florida law, there are exceptions. If a surviving spouse waived his or her inheritance rights in a prenuptial or other agreement, he or she may be out of luck. However, it never hurts to consult with a Florida probate lawyer to make sure that the inheritance rights or homestead rights were validly waived.

Surviving Spouse and Homestead

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.

Inheritance attorneys know that valuable surviving spouse rights usually come with strict deadlines 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 is 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? You may want to read a March 19,2019 Second DCA opinion, Samad v. Pla.

Samad v. Pla

This opinion is a great example of a probate dispute involving a surviving spouse’s homestead rights. Specifically, this Florida appellate opinion discusses Florida Statute 732.401 and what happens if a surviving spouse fails to make a timely election.

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 trust and estates lawyer to assist you with inheriting a homestead property in Florida, call (561) 268-0233 ext.101.