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Written by Thomas Upchurch
In Florida, a surviving spouse has rights that extend beyond the terms of the deceased spouse’s will. Depending on the circumstances and the nature of the property, different protections may apply. While a Florida estate lawyer is the best source of information about how these provisions impact your specific circumstances, the overview below provides general information about how Florida law protects a surviving spouse.
When one spouse dies without a will, the surviving spouse is entitled to 100% of the decedent’s estate if:
When one or both spouses has lineal descendants who are not descendants of the other (for example, the husband has a child from a previous marriage), the surviving spouse is entitled to 50% of the deceased spouse’s estate. However, not all property becomes a part of the deceased spouse’s estate and is subject to distribution through the probate court.
Florida law protects the surviving spouse even if the deceased spouse leaves a will, meaning that the surviving spouse may be entitled to property not devised to him or her in the will. This is known as the “elective share.” In simplest terms, the surviving spouse may elect to receive 30% of the estate, even if the will allocates that property to others.
When the deceased spouse didn’t leave a will, property that qualifies as a homestead under the Florida Constitution passes like any other intestate property, with one exception. If there is a surviving spouse and one or more other descendants, then the surviving spouse receives a life estate in the property, with the property passing to the descendants upon his or her passing. This provision is intended to ensure that the surviving spouse can remain in the couple’s home for the remainder of his or her life. However, the surviving spouse also has the option of electing to receive a ½ undivided interest in the property as a tenant in common with the decedent’s descendants.
In plain English, the surviving spouse in a case involving descendants may choose to retain a life estate in the property or to inherit half ownership of the property.
The surviving spouse has a right to 50% of community property acquired during the marriage. Since this property is not property of the decedent but is the surviving spouse’s existing share of community property, it is not a part of the decedent’s estate. Passing outside the estate means that this property is not considered for purposes of determining a 50% share where there are non-mutual lineal descendants, nor is it governed by the decedent’s will.
If the surviving spouse should decide to elect against the will, the 50% of community property that passes outside the estate is not included for purposes of calculating the surviving spouse’s 30% share.
Florida law ensures that a surviving spouse is provided for, even if the deceased spouse did not leave a will or left a will that bequeathed most or all property to someone else. For more detailed information about how these protections apply in your situation, talk to a Florida estate lawyer.