In Florida, a surviving spouse has spousal rights to a deceased spouse’s property whether or not the decedent provided for such in their will.  These rights include exempt property, a family allowance, an intestate share, a pretermitted spousal share, an elective share, and homestead property rights. Reviewing the will and the spouse’s property rights is extremely important in the case of blended families.

What do all these terms mean you ask? 

Exempt property – a surviving spouse (or children if no spouse/spouse has waived) is entitled to certain personal property free from unsecured creditor claims; including household furniture, furnishings, and appliances in the decedent’s home up to $20,000, 2 motor vehicles, all qualified tuition programs, and all death benefits paid to teachers/school administrators. Exempt property is in addition to the elective share, property devised by the decedent’s will, or assets inherited by intestate succession (without a will). Fla. Stat. § 732.402, Exempt property (Florida Statutes Section 732.402).

Family allowance – a surviving spouse and children “lineal heirs” who the decedent was supporting or was obligated to support are entitled to an allowance for their maintenance during the probate administration not to exceed $18,000.00. Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005)(citing DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2d DCA 1990)); Family allowance (Florida Statutes Section 732.403).

Intestate share – any property not disposed of by a Will is controlled by Florida law which provides: a) a spouse receives the entire estate if the decedent has no children or all children are also the surviving spouse’s children; or b) a spouse receives one-half (1/2) of the probate estate if there are children that are not the surviving spouse’s children or the surviving spouse has children that were not the decedent’s. This does not include assets held in trust.  Intestate share of the probate estate (Florida Statute Section 732.102).

Pretermitted spousal share – if a person marries after making a will and his or her spouse survives the decedent, the surviving spouse shall receive an intestate share unless a provision has been made for, or waived by, the spouse in a prenuptial or postnuptial agreement; the spouse is provided for in the will; or the will clearly states an intention not to provide for the surviving spouse.   Pretermitted spousal share of the probate estate (Florida Statutes Section 732.301). 

Elective share – A Florida resident cannot cut his/her spouse out of receiving a share of his/her estate, trust, or property upon death.  A surviving spouse has a right to take an elective share and the election does not reduce any other entitlement by law. Florida Statute § 732.201.  The elective share is equal to 30% of the elective estate. Fla. Stat. §732.2065. The “elective estate” (all property interests owned by the decedent at the time of death and certain property transferred within one year prior to death) of the decedent if the spouse did not receive as much through other means. The elective estate is calculated by adding the net values of all the deceased spouse’s probate assets and non-probate assets, which would include assets owned jointly with others, assets held in a revocable trust (or other revocable transfers), certain irrevocable transfers with a retained right by the transferor to receive income or principal, cash value of life insurance policies, pensions, interest in protected homestead, retirement plans, transfers made within one year, and irrevocable transfers to an elective share trust. Fla. Stat. § 732.2035. This includes any property devised to the spouse through the decedent’s will and trust, property received by beneficiary designation, the decedent’s share of any property owned jointly with the surviving spouse, proceeds from a life insurance policy (term or other) on the decedent’s life that are payable to the spouse and owned by someone other than the spouse.  If these assets are not enough to satisfy the elective share, then it is possible that recipients of the decedent’s property would be required to contribute to the satisfaction of the elective share. Elective share (Florida Statutes Sections 732.201 – 732.2155).

Homestead property rights – a decedent’s homestead property rights inure to the surviving spouse or, if no spouse, to heirs. The homestead property may not be devised to anyone else if there is a surviving spouse or minor child. If there are lineal descendants (adults and/or minors), the surviving spouse will receive a life estate with a vested remainder to lineal descendants or may elect to take an undivided ½ interest with the other ½ interest passing equally to the children ” lineal descendants”  in being at the time of decedent’s death, per stirpes. Homestead property (Article X, Section 4(c) of the Florida Constitution and Florida Statutes Section 732.401).

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

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