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Guide to Surviving Spouse Rights in Florida

Widows Get Guaranteed Inheritance from Florida Probates

Perhaps one of the biggest probate litigation issues in Florida is the rights of surviving spouses, or widows. Why is that?

  1. Florida probate law, or, perhaps the public policy of the Sunshine State, give husbands and wives almost a special treatment under the law. And this special treatment can be worth millions and millions of dollars. So, if you are a spouse, or a widow, and you survived your last husband or wife, you may be entitled to inherit a LOT of money, IRAs, retirement account, Homestead property, real estate and bank accounts. Even if there is a will which dis-inherits you. Why? Because Florida probate law gives you, a spouse, certain preferences and guaranteed inheritances.
  2. 2nd & 3rd spouses. So, in Florida prenuptial agreements are very popular. Many estate planning attorneys from Boca Raton to Orlando write prenuptial agreements which usually, or typically, waive a spouse’s inheritance rights, among other things. I can’t tell you how many probates we have been involved in where a 2nd or 3rd spouse is “fighting” with the adult children from a prior marriage or relationship of a deceased Florida resident. Yes, not surprisingly, adult children don’t like the man your mother marries for the 3rd time, or they don’t like the woman your father marries for the 2nd or 3rd time. Hey, the feelings are probably mutual, right? Whether there is a prenup or not, step children and step-parents do “battle” in probate court when there is a Florida trust or estate with money in it.
  3. Marital Trusts. I don’t understand it, but there are still a lot of Florida trust lawyers or estate attorneys who write or create marital trusts which features people, beneficiaries, who should not be connected financially. This is a HUGE area of business for probate litigation law firms in Florida. Florida estate planning attorneys typically create a trust which says that it will benefit a widow for her life, and, after the widow’s passing, the trust is inherited by the trust creator’s adult children from a prior marriage or relationship. Wait a minute ! Are you telling me that estate planning lawyers are putting 2nd or 3rd spouses in the same financial stew as their adult step children? Indeed. These Florida marital trusts are common and often cause either the lifetime beneficiary, the spouse, or widow, to call a probate litigation law firm because they don’t like the step children knowing what they are spending trust money on. And vise versa, right? The remainder beneficiaries of a Florida revocable trust who inherit dad or mom’s trust after the step-parent dies, don’t want the trustee to give away a lot of money to the widow.

So, if you are a spouse, or a widow, and your spouse died, listen up. You have guaranteed inheritance rights, UNLESS you waived those rights, such as in a prenup. And remember: a waiver, to be valid, must usually be in writing, and be voluntary and knowingly entered into. Widows: you should not make the assumption that you waived rights to a Florida inheritance until you talk to an estate litigation law firm. Yes, you have guaranteed inheritance rights even if your husband or wife had a will that left you nothing. And, remember, if you don’t like what the will says, you may be able to get more of an inheritance by filing for an elective share or for Florida homestead or for a family allowance. Yes, if the will gives you only a pittance, you can claim more. But you have to make a claim to your elective share within the probate code time frames and you should know who to calculate the elective share, or the elective estate, to see how much you inherit. If there is no will, and you did not waive your rights to an inheritance, you may be able to inherit 50-100% of the estate of your late spouse, plus the Homestead, plus the IRA and maybe retirement accounts. It all depends because it is fact specific. Everyone seems to know that you get a “guaranteed” 30% elective share, but do you know how to file papers to get that money? Do you know the legal procedure which happens in probate court under the Florida Probate Code? And do you know how to inherit what you are entitled to in a Florida probate if your step children or executor fight you? What’s your probate litigation strategy?

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