A surviving spouse in Florida is entitled to part of her deceased spouse's estate in most cases, even if the will fails to provide for her. Florida law doesn't allow for the complete disinheritance of a spouse if the will was made while the couple was already married. However, if the will was made before the marriage, the surviving spouse may be disinherited.
A surviving spouse in Florida may take an elective share of the deceased spouse's estate. The surviving spouse is entitled to this share if the deceased spouse's will was made after the couple married and the will (1) disinherited her, (2) omitted her, or (3) left her less than the elective share amount set by Florida law. The share amount is 30 percent of the deceased spouse's elective estate. The elective estate includes property and assets subject to Florida probate and certain non-probate assets or property, such as assets in a trust. A spouse who waived her right to an elective share in a prenuptial or postnuptial agreement can't take the elective share after her spouse dies.
A surviving spouse is entiled to a life interest in the real estate that served as the couple's main home. The remaining interest belongs to the deceased spouse's descendants, such as his children. This means that even if the deceased spouse's will left this property to someone other than his spouse, his spouse is still entitled to live in the home after his death so long as his will was made after the two married. This arrangement, known as a life estate, allows the surviving spouse to live in the home, rent-free, until she dies, at which time the remaining interest passes to the deceased spouse's heirs. As with an elective share, if the surviving spouse waived her homestead rights in a marital agreement, she can't claim this entitlement after her spouse's death.
The surviving spouse is entitled to a family allowance, regardless of her share in the will, so long as the will was made after the two married. This allowance is a cash amount, not to exceed $18,000, and is in addition to an elective share and her interest in the marital home. The allowance is paid out of the estate's assets during the probate process and is meant to support the spouse during the probate proceedings. If the deceased has minor children who are not living with the surviving spouse, the allowance is divided between the surviving spouse and these minor children. If the surviving spouse waived her right to the family allowance in a marital agreement, she isn't entitled to the money during the estate proceedings.
Will Before Marriage
Special rules apply to a pretermitted spouse. If a deceased person makes a will before he marries, his surviving spouse is considered a pretermitted spouse. A pretermitted spouse may take a share of the estate equal to what she would receive under Florida law if her spouse had died without leaving a will. This share is usually larger than the elective share. The spouse receives the entire estate if the deceased only had children with the surviving spouse. If the deceased had children with another person, the surviving spouse receives one-half of the estate. However, she's not entitled to a pretermitted share if the will made before their marriage specifically disinherited her or she waived her pretermitted share rights in a martial agreement.
- The Wealth Counsel: What Every Estate Planning Attorney Should Know About Florida Homestead Law
- Law Offices of Haley B. Colina: Restrictions on Wills
- Florida Legislature: Probate Code: Intestate Succession and Wills
- Chepenik Trushin LLP: Florida's Elective Share
- Chepenik Trushin LLP: Pretermitted Spousal Rights
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