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Surviving Spouse Rights in Florida Probate

Florida law provides a handful of benefits and rights to a surviving spouse. Yes, widows have very valuable inheritance rights in Florida probates. That said, there are short deadlines associated with the benefits and rights in which a surviving spouse’s rights must be exercised and otherwise protected. Some of these rights include:

  • Homestead (See Article 10, Section 4(c) of the Florida Constitution). A surviving spouse gets a life estate with a vested remainder to the descendants. Fla. Stat. 732.401. An election to take a one half interest as a tenant in common may be exercised as well, see Fla. Stat. 732.401(2), if filed within the short statutory time frame. The Second District Court of Appeal, in Friscia v. Friscia, 161 So. 2d 513 (Fla. 2d DCA 2014), explained the constitutional provisions in concise format:§ 4. Homestead; exemptions(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, … the following property owned by a natural person:(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon …; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;….(b) These exemptions shall inure to the surviving spouse or heirs of the owner.Interestingly, and importantly, the Friscia court explained that a homestead that qualifies for these exemptions is not a part of the decedent’s estate and therefore the personal representative does not have jurisdiction over it or title to it. Id., citing McKean v. Warburton, 919 So. 2d 341, 346 (Fla. 2005).
  • Elective share (i.e., electing to take 30% of the elective estate and electing against the provisions set out in a will). Florida’s elective share statutes are found at Fla. Stat. §732.201 through §732.2155. A surviving spouse has the right to a share of the elective estate of a decedent – designated the “elective share” – which is 30% of the elective estate. Fla. Stat. §732.2065. Florida Statute 732.2035 sets out what is included in the elective estate calculation.
  • Family allowance – which provides a lump sum, one-time payment of $18,000 (see Fla. Stat. 732.403). This family allowance is in addition to the homestead and the exempt property, and is not included in the elective share.
  • Exempt property (See Fla. Stat. 732.402). This includes certain items of tangible personal property – things like household furniture, furnishings and appliances up to $20,000 as of the date of death, as well as two automobiles which were held in the decedent’s name. It also includes tuition programs such as 529 plans and Florida Prepaid College contracts.
  • There are also social security death benefits, which are typically paid in a lump sum if applied for and paid to the surviving spouse.

Of course, these rights would be available to a surviving spouse from an estate if not otherwise waived by way of a prenuptial agreement.

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