In Florida, a husband is free to leave everything to his wife in his will, if he has a will. However, if he doesn’t make a will – or if he makes a will but doesn’t leave enough of his estate to his wife – Florida law steps in to determine how much of the husband’s estate the wife is entitled to when he dies.
Like other states, Florida has a set of laws that dictate how much a surviving spouse receives if her husband dies without a will, or intestate. According to Florida’s laws of intestate succession, a wife whose husband dies intestate is entitled to receive the entire estate if neither the husband nor wife has descendants.
Intestate Succession with Children
Under Florida’s intestate succession laws, when a husband dies and either the husband or wife has descendants, such as children, the wife’s share changes. If the husband’s descendants are also descendants of the wife, the wife will inherit the husband’s entire estate as long as she doesn’t have any other descendants. If she does have other descendants, she will receive only half of his estate. For example, if the husband and wife have two children together and the wife has no other children, she will inherit the entire estate when her husband dies. However, if the wife also has another child from a previous relationship, she will receive only half of the estate; the children they had together will receive the other half. Similarly, if the husband had children from a previous relationship, his children will receive half of his estate and his wife will receive half.
If the husband leaves a will, the laws of intestate succession don’t apply. Instead, Florida’s elective share laws state that a wife has a right to 30 percent of her deceased spouse's estate, known as her “elective share,” and may choose to take that share rather than the share she would inherit under the terms of the will. Even if the husband disinherited his wife in his will, she is entitled to the elective share.
Read More: Husband's Contract to Waive Rights to an Elective Share of a Spouse's Property
Property Included in Elective Estate
An elective estate includes more than just the husband’s probate estate, which is the estate distributed by the will. It also includes the value of the husband’s share of property that passes directly to other beneficiaries. For example, if the husband owned property with his brother as joint tenants with rights of survivorship, the property may pass automatically to his brother, but half of the value of this property is included in the elective estate.
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.