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Home > West Palm Beach Probate Attorney > Guide to Surviving Spouse Rights in Florida

Guide to Surviving Spouse Rights in Florida

Under the Florida Probate Code, a surviving spouse is entitled to a number of benefits and rights from the deceased spouse’s estate. Because probate deadlines are short, it’s important to ensure the surviving spouse’s rights are preserved within the deadlines set forth by the statute. Failure to meet one or more deadlines can mean the surviving spouse is left without certain benefits and rights. This is one of the reasons why retaining a Florida probate attorney is so important.

Surviving spouses have guaranteed inheritance rights unless he or she waived them, for instance in a prenuptial agreement. In order for a waiver to be valid, it has to be in writing, it must be voluntarily, and you must have knowingly entered into it. Don’t assume that if you waived your rights it’s automatic until you actually speak with an experienced attorney who can advise you.


Florida residents cannot devise their homestead through a will or trust in the event they have minor children and/or a surviving spouse. If you are survived by your spouse and minor children or if there are no minor children and the homestead is not completely and fully devised to the spouse, the devise will be considered ineffective.

This means the homestead will pass with a life estate to the surviving spouse with the remaining portion passing equally to your descendants. The surviving spouse can opt to take an undivided one-half interest in the homestead property rather than the life estate within six months of the spouse’s death. It’s required to record this in the county where the property is located versus where the probate was filed, and this election is not revocable.

Intestate Share

The surviving spouse of someone who died without a will, or intestate, will be entitled to the entire estate provided the deceased has no descendants or all the descendants are also descendants of the surviving spouse. They will be entitled to half the probate estate if there are descendants that are not descendants of the surviving spouse or there are descendants who are descendants of both spouses, but the surviving spouse also as additional descendants which are not descendants of the decedent.

Elective Share

In Florida, a resident can’t cut their spouse out of their share of the estate, property, or trust when they die. Your surviving spouse can choose to take an elective share of your elective estate, which is equal to 30 percent of the elective estate.

Other Benefits

There are a number of other benefits that a surviving spouse has the right to. These include:

  • A reasonable allowance of money that is payable from the probate assets for maintenance while the probate process is going on. There is a maximum of $18,000.

  • Assets from the probate estate that are labeled as exempt property, which can include appliances, furnishings, and other household furniture, up to a maximum net value of $20,000 on the date of death, two vehicles (some restrictions apply) that are in the deceased’s name, and certain other death benefits.

Retaining a Florida Probate Attorney

If you have questions about the rights and benefits of surviving spouses, or any other probate issues, contact the Law Offices of Larry E. Bray, P.A. at 561-571-8970 to schedule a consultation.

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