What Rights Does a Surviving Spouse Have in Florida?

When a spouse passes away, it can be an overwhelming time, especially when dealing with estate matters. In Florida, surviving spouses are given specific rights to make sure they are protected. Whether your spouse passed away with or without a will, it’s important to know what you're entitled to under Florida law.

What Happens If Your Spouse Died Without a Will?

If your spouse dies without a will, known as dying intestate, state law determines how their estate is divided. As a surviving spouse, your share depends on your family situation:

• If all of your spouse’s children are also your children, you are entitled to the entire estate.

• If your spouse has children from a previous marriage, you are entitled to half of the estate, with the other half going to those children.

• If you have children from a previous relationship, you are also entitled to half of your spouse’s estate, even if you and your spouse had children together.

What if Your Spouse Had a Will?

Even if your spouse left a will, Florida law provides protections for surviving spouses:

• If you married after the will was created, you may still be entitled to a share of the estate, similar to if there was no will. However, this can vary based on the specific terms in the will or other legal agreements.

Can a Spouse Be Disinherited?

Florida law makes it difficult to disinherit a spouse. In most cases, you have the right to an elective share of your spouse’s estate, even if the will attempts to exclude you. This elective share is equal to 30% of your spouse’s total assets, including assets that don’t go through probate, such as life insurance policies, revocable trusts, and pay-on-death accounts.

Factors That May Affect Your Rights

Several factors can influence your rights as a surviving spouse:

• Premarital or postnuptial agreements: These may waive your right to certain property, such as the marital home.

• The will may leave specific property to you or exclude you entirely. However, without a legal agreement, disinheriting a spouse is difficult.

• You must claim your elective share within six months of receiving notice of the estate administration or within two years of your spouse’s death.

Conclusion

Understanding your rights as a surviving spouse in Florida is crucial for protecting your share of the estate. Consulting with an experienced estate planning attorney can help ensure that your rights are preserved and that you receive what you’re entitled to under the law.

For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.

Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.