Florida Estate Law

Florida Estate Law & Widow’s Guaranteed Inheritances

“Florida Estate Law” refers to the rules, and legal guidelines, statutes and procedures which relate to a Florida resident who has passed away, or a deceased Florida resident’s property. Put another way, Florida estate law includes how the property of a dead Florida citizen will be distributed after that Florida resident dies. Florida Estate Law include such matters as the rights of beneficiaries, widows, family members, heirs, people who are owed money.

So, while Florida Estate Law includes who inherits property, and when an inheritance may be received, and the inheritance rights of family members regarding money, real estate, bank accounts and financial assets, Florida Estate Law is not limited to just inheriting property from somebody who died in Florida.

Widow’s Inheritances Florida estate law also includes very specific Florida statutory rights with regards to distributing property after someone dies in Florida. For example, Florida Estate Law provides that you cannot disinherit your wife or husband, unless they consent. If someone dies in Florida, and he or she was married at the time of death, providing there is no prenuptial agreement, then that widow, also called a surviving spouse, has lots of rights. A widow has a right to a 30% of elective share of the dead Florida resident’s estate. The widow share of a Florida Estate may actually increase to 50% depending on a number of factors. Heirs, sometimes referred to as kin, or descendants, or issue, really meaning certain family members, also have inheritance rights under certain circumstances. But clearly, Florida Estate law favors and wants to protect the Florida widow. A Florida widow, or a surviving husband or surviving wife, has rights not only to the elective share, but also to an automobile, a “family allowance”, which may be $18,000, and certain personal property. But one of the biggest benefits that Florida Estate law gives to a surviving husband or surviving wife is homestead. The right to inherit, or live in, or receive a portion of sale proceeds, of the dead Florida citizen’s Florida residence. Florida Estate law provides a widow with inheritance rights which can literally be worth in the millions of dollars. This is so, even if the dead Florida citizen has a will, or a Florida trust, which leaves nothing to the husband or wife. This is because, generally speaking, Florida Estate law does not permit a Florida resident to disinherit your husband or wife. There are exceptions to this very important Florida Estate Law, which will not be discussed here.

For information about family allowance under the Florida Probate Code, read F.S. 732.403 and for information about property a spouse can inherit, read Florida 732.402. F.S. 732.402 deals with so called exempt property. If you are a widow, your Florida estate attorney should be VERY, I mean VERY, familiar with F.S. 732.201-732.228 about Florida’s Elective Share.

Probate Creditors Have Rights, Too

But, Florida Estate Law is a lot more than inheriting money. Florida Estate law also deals with bank accounts, real estate, and the rights of those who are owed money by the dead Florida resident. If somebody owes you money in Florida, and that person dies, you now become a creditor of that dead person’s estate. Florida Estate law has very strict, and very short, laws for creditors who need to be paid by the estate. There are very short time frames for a creditor to file a claim and to try to get paid from the estate. Although facts and circumstances always seem to rule the day, if you are owed money from an estate, and you are a creditor of the estate, you may only have as little as three months to file what’s called a “statement of claim.” A statement of claim is an official, court filed document, which is filed by the estate creditor in the probate. Your statement of claim tells the world that the dead person, now his or her estate, owes you money, how much, and why money is owed. The estate may object to your statement of claim, and if so, you need to file a lawsuit to preserve your rights. The rights of creditors to the Florida estate, or specific Florida property, is an important part of Florida Estate law, with unique rules and very short timeframe. An estate creditor’s statement of claim is often referred to as a creditor’s claim.

The technical aspects of Florida Estate Law are found in the Florida Probate Code, and the Florida Probate Rules, as well as published opinions of Florida appellate courts, remaining Florida laws, and the Florida Rules of Civil Procedure. This body of law is what non-lawyers may call the “technical” part of Florida Estate Law. These are the laws that are created by the legislature and signed by the governor which create rights, set guidelines, and set procedures for the administration of a Florida Estate. This body of law also creates time frames, and which tells us who may participate in the estate administration process. In short, these rules and laws tell us how the probate process will go, who will inherit, who will not, and who gets paid and how much.

Florida Estate Law also includes a number of aspects of the probate process, the estate administration process, and probate litigation, which includes disputes, or disagreements, among heirs and beneficiaries. There are unique rules and procedures if, for example, you want to overturn a will, or if you want to participate in the probate process, but you are being told that you don’t inherit, or that you are not permitted to be involved in the probate process.

Florida Estate Law will also deal with related issues of law which some people may consider “outside” the scope of Florida Estate Law. If you are involved in the administration of a Florida Estate, if you are a beneficiary, a widow, or you were disinherited, you should know the related areas of the law which may affect your case. For example, you may need to know the Florida law regarding joint bank accounts, or trusts, or whether a lifetime gift to you, also called an inter vivos gift, is valid or not, or whether you have to give it back to the estate. Often times, people who are involved in Florida Estates will have to deal with money and assets which pass “outside” the estate. Many people have bank accounts or brokerage accounts or annuities and life insurance policies which have beneficiary designations and survivorship features. It will be important to know whether these assets are really part of the Florida estate, which should be included in the probate process, or whether they are not.

Another area of Florida law which is closely related to Florida Estate Law, is when one sues to obtain an inheritance. Many beneficiaries who have had their inheritance improperly eliminated, or reduced, have, increasingly, sought to bring a civil lawsuit which is often referred to as “tortious interference with inheritance.” This type of inheritance lawsuit, or Florida inheritance litigation, is certainly related to Florida Estate Law, but is often thought of as a “tort”. This type of inheritance lawsuit may not necessarily take place in a probate court, but rather in a civil court, in front of a jury. Regardless, however, if you pursue this type of inheritance litigation, you’ll need to have an understanding of related areas of Florida Estate Law.

Finally, Florida Estate Law deals with the “legal actors” who are involved with Florida Estates in the probate process. Personal representatives, executors, administrators, beneficiaries, and, yes, even probate lawyers, are addressed by Florida Estate Law. There are literally dozens, if not hundreds, of issues which are contained in Florida Estate Law, including how much an executor may be paid, whether the probate lawyers are charging a reasonable fee, whether an estate should be closed, and whether an estate lawsuit, or an inheritance lawsuit, may go forward or not.

In the end, Florida Estate Law seeks to create, define, and interpret rights of people to the money and property of somebody who just died in Florida. Florida Estate Law sets forth guidelines, time frames, and procedures to seek to get your inheritance, to properly administer a Florida Estate, and to, at all times, comply with the law and the last will, and wishes, of the Florida citizen.