Florida Probate, Trust & Guardianship Litigation

Florida Surviving Spouse Rights

Surviving Spouse Rights in Florida include:

  • All or one-half of the estate if there is no will
  • All or one-half of the estate if the will predates the marriage
  • Homestead rights in the marital residence
  • An elective share equal to 30% of probate and non-probate assets
  • Family Allowance
  • Exempt Property

With short deadlines in probate, it is important to effectively secure the rights of a surviving spouse within the timelines provided by statute to ensure the surviving spouse is protected and receives all he or she is  entitled to under Florida law.   The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements. Download the Guide to Surviving Spouse Rights in Florida.

What if a Spouse Dies Without a Will?

Meaning of Intestate

If a person dies without a Will he or she is considered to die intestate. Read Who Are Next of Kin in Florida.

Intestate Share of Spouse

If a spouse dies without a Will, the surviving spouse receives an intestate share.  (If a couple is separated at the time of death, the surviving spouse is not barred from inheriting under Florida law).

  • SHARE OF SURVIVING SPOUSE – NO CHILDREN OR ALL DESCENDANTS OF SURVIVOR AND SPOUSE.  If the only survivor is a surviving spouse, or if all the lineal descendants are also lineal descendants of the surviving spouse and the decedent, then the surviving spouse receives the entire estate of the decedent.
  • SHARE OF SURVIVING SPOUSE IF THERE ARE SURVIVING DESCENDANTS NOT FROM BOTH DECEDENT AND SURVIVING SPOUSE.  If there are descendants of the decedent who are not also of the surviving spouse, or if there are descendants of the deceased, but the surviving spouse has descendants not also from the decedent, then the surviving spouse receives one-half of the intestate estate.

Pretermitted Spouse

  • PRETERMITTED SPOUSE.  If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called a pretermitted spouse.  Under Florida law, a pretermitted spouse is entitled to receive a share of the estate as if the decedent died intestate, unless the will clearly provides to the contrary.  (It is unusual for a will to name a person as a potential future spouse and fix that person’s inheritance in the will.  If the will does this, the surviving spouse can consider whether he or she would be better off with the elective share.)
  • PRETERMITTED SPOUSE WITH A WILL AND NO DESCENDANTS.  If there are no lineal descendants and only a pretermitted spouse, under Florida law, the pretermitted spouse receives the entire estate notwithstanding that a Will may leave assets to other heirs of the decedent.

Surviving Spouse’s Florida Homestead Rights

Spousal Homestead Rights

Article X Section 4(c) of the Florida Constitution limits who can receive Homestead property upon the death of an owner if he or she is survived by a spouse or a minor child.  A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Florida.  See the Complete Guide to Florida Homestead.

Tenant In Common Election

If a surviving spouse is left a life estate, he or she has six months from the decedent’s date of death to make an election under Florida Statutes Section 723.401 to take a one-half interest in the Homestead as a tenant in common.  This is a very important election, because in Florida, owning a life estate can often be more costly to maintain than the benefit is worth, given the high cost of ownership of real estate in Florida as a result of property taxes, insurance, and homeowner association dues.  By making the election a spouse can force the sale of the property and receive 50% of the sales proceeds.  Homestead rights are protected by the Florida Constitution and are in addition to any elective share, family allowance, or exempt property rights discussed below.   No notice of the tenant in common election right needs to be given to the surviving spouse, making this six month deadline easy to miss.

Can a Spouse Make a Late Tenant in Common Election?

No.  A late filing is not allowed for excusable neglect or any other reason.  

In Samad v. Pla, the Court rejected excusable neglect as grounds for making a late election.  The surviving spouse, about 7 ½ months after decedent’s death, moved pursuant to Florida Probate Rule 5.042(b)(2) for an extension of time to make the election, based on excusable neglect.

Florida Probate Rule 5.042, as summarized by the appellate court, provides that:

‘When an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder,’ the court may grant a request for enlargement of time to accomplish the required act if (1) a request for enlargement is made before the expiration of the specified time or (2) after expiration of the time if ‘the failure to act was the result of excusable neglect.  Rule 5.042 does not apply to acts required to be done by statute.  Therefore, no extension of time based on excusable neglect is permitted for the filing of the spousal TIC election.

Elective Share 

  • ELECTIVE SHARE. Under Florida probate law, a Surviving Spouse has a right to a 30% elective share of the estate of the deceased spouse valued as of the date of death.    Florida Statutes Section 732.2035 is an all encompassing statute that includes in the elective estate the following items: Probate estate, pay on death (POD), transfer on death and similar accounts; jointly owned accounts or securities based on the amount the decedent could withdraw, jointly owned real estate, ½ of  tenants by the entirety property, certain revocable transfers, including revocable living trusts, retained life estates and income interests, most retirement benefits, cash value of life insurance immediately prior to the death of the decedent, most gifts one year prior to death, and property transferred in satisfaction of the elective share prior to death.  While debts of the decedent reduce the elective share, expenses of administration such as attorney fees do not reduce the value of the elective share. The elective share can also receive interest from the estate in some circumstances.  The value of the elective share is initially satisfied from assets that have already passed to the surviving spouse, next from the probate estate, and finally from other assets included in the elective estate.
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE.  The elective share election must be made within the earlier of 6 months from the service of a Notice of Administration on the surviving spouse or, if no Notice of Administration is given, within two years of the date of death of the decedent pursuant to Florida Statutes Section 732.2135; Florida Probate Rule 5.360.  If a temporary election is made it must be withdrawn within 8 months from the decedent’s date of death or prior to the order for contribution.  The personal representative shall serve all parties within 20 days of receipt of an Election to Take Elective Share along with a copy of the Election.  An interested party then has 20 days of receipt of the Formal Notice to object.

Read the Complete Guide to Florida Elective Share

Family Allowance

  • FAMILY ALLOWANCE.  In addition to Homestead rights and the right of elective share, a surviving spouse of a Florida decedent is entitled to a Family Allowance of up to $18,000 payable in lump sum or installments.  The family allowance provides support for the decedent’s spouse and lineal heirs that the decedent was supporting, pursuant to Florida Statutes Section 732.403.  The amount paid in the Family allowance cannot be offset against the share otherwise passing to the surviving spouse unless the Will provides otherwise.  If a personal Representative is recalcitrant in paying the allowance after a petition is filed pursuant to Probate Rule 5.407, the estate may even be required to pay attorneys fees for getting the allowance, since a benefit has been provided by the estate.
  • DEADLINE FOR FILING THE FAMILY ALLOWANCE.  The Family Allowance can be filed at any time during the pendency of the administration of the estate.

Surviving Spouse’s Right to Florida Exempt Property

  • EXEMPT PROPERTY.  In addition to Homestead and Family Allowance, testate and intestate property and Elective Share, the surviving spouse of a decedent domiciled in Florida at the time of death is entitled to certain items of tangible personal property including household furniture and appliances up to $20,000 as of the date of death, two personal automobiles held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as personal automobiles under 15,000 pounds.  This property is called Exempt Property under Florida Statutes section 732.402.  Exempt property has an additional advantage of being exempt from all creditors of the estate except perfected security interests.  However, property that is specifically bequeathed in a decedent’s will is not subject to the exemptions of Florida Statutes section 732.402.   Furthermore, if Exempt property is specifically devised to a person who otherwise would receive the exempt property, one can petition the court to determine the property to be exempt, and therefore not subject to creditors with non-perfected security interests under Florida Probate Rule 5.406.  Furthermore, exempt property is excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.
  • DEADLINE FOR FILING FOR EXEMPT PROPERTY.  An Exempt property petition must be filed no later than either four months after the date of service of the Notice of Administration or the date that is 40 days after the date of termination of any proceedings involving the construction, admission to probate, or validity of the Will or involving any other matter selecting part of the estate subject to Florida Statutes section 732.402.

Surviving Spouse’s Community Property Rights

  • COMMUNITY PROPERTY.  A decedent’s surviving spouse is entitled to one-half of all community property acquired during the marriage, and this is not an elective estate, and is not subject to testamentary distribution under the decedent’s estate.  While Florida does not recognize community property as a property ownership form for its residents, it will respect community property acquired while such person was a resident of a community property state and continually held as community property.
  • DEADLINE FOR FILING FOR COMMUNITY PROPERTY.  Florida Statutes sections 732.221 and 732.223 allow a surviving spouse or a beneficiary to perfect title in Community Property by order of the Probate Court or by an instrument executed by the personal representative or the beneficiaries with approval by the Probate Court.  The personal representative has no requirement to search for community property, unless the surviving spouse, beneficiary or a creditor files a written demand to the personal representative within three months of the filing of a Notice of Administration on the surviving spouse or such beneficiary.  A creditor has three months from first publication of the notice to creditors to make a written demand.  We have written about community property claims in Florida here.

Social Security Death Benefit

  • SOCIAL SECURITY DEATH BENEFIT.  Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
  • SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE.  It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.

Marital Agreements Between Decedent and Surviving Spouse 

  • MARITAL AGREEMENTS.  Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.  It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse.   See the guide to marital agreements in the probate process.  

Spouse’s Entitlement to See the Will

  • FILE A KNOWN WILL.  A known will must be filed with the court within 10 days of the decedent’s death. Florida Statutes section 732.901.  A surviving spouse also has a right to a copy of the will.

Right to Court Documents

  • COURT DOCUMENTS.  A surviving spouse is entitled to all the documents filed with the court in their spouse’s probate proceedings.  This includes the Petition for Administration, Letters of Administration, Notice to Creditors, Inventory, Petition for Discharge, Final Accounting, Order for Discharge, and any and all other pleadings regarding the estate.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers in Florida who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.

Denial of Florida Spousal Rights in Cases of Undue Influence, Duress or Fraud 

  • Florida law allows the beneficiaries or the personal representative of an estate to attempt to deny spousal benefits to the spouse of a valid marriage if the marriage was allegedly obtained through fraud, duress, or undue influence.  See Florida Statute section 732.805.  Even if the marriage was so procured, the spouse will be entitled to the benefits if the marriage was subsequently ratified.

Is it Legal to Give a Surviving Spouse a Choice of Benefits?

Yes, you can leave a surviving spouse a choice of rights between a cash bequest and the elective share.  In Dinkins v. Dinkins, 2013 Fla. App. LEXIS 11732 (Fla. Dist. Ct. App. 5th Dist. July 26, 2013), the Florida appellate court said yes – a choice is acceptable.

The Decedent’s estate plan left the surviving spouse a lifetime interest in a trust (called a QTIP Trust).  The estate plan also provided that if the surviving spouse were to disclaim her interest in the QTIP Trust and waived her right to the elective share, she would receive an immediate cash distribution of $5 million.

Under Florida law, a surviving spouse is entitled to several statutory rights. These rights include the elective share, which is 30% of the estate of a decedent.

The surviving spouse argued that she should receive the interest in the trust, her elective share, AND the $5 million cash bequest.  The widow argued that the choice provision was essentially a penalty clause because it would penalize her for taking the elective share by causing her to forfeit the $5 million cash bequest.

In rejecting the argument that the surviving spouse choice of rights between the cash bequest and the surviving spouse right of elective share was an invalid penalty clause, the court explained as follows:

Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. * * * Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public  policy is codified in section 736.1108(1) and its probate analogue, section 732.517.

On the other hand, under a clause providing an alternative to a statutory minimum benefit, to receive the alternative devise, the beneficiary must forfeit the right to receive the statutory benefit. The purpose of statutory minimum benefits is generally to ensure that surviving family members are provided for and do not become dependent on the public treasury, regardless of the decedent’s intent. * * * This purpose is not thwarted by providing an optional alternative devise, because the beneficiary is free to reject it for any reason, including that it is less valuable than the statutory benefit. The purpose of the statutory benefit is satisfied, because the beneficiary has the ability to choose an option at least as valuable as the statutory minimum. Therefore, unlike a no contest clause, an alternative devise clause does not undermine the purpose of the legal right forfeited, and thus does not penalize the beneficiary for purposes of section 736.1108(1).

How to Defeat Spousal Rights in Florida

  1. Marital Agreement.  Florida as well as most every other state, allows spousal rights, including the elective share, to be waived by a premarital or postmarital agreement.
  2. Term Insurance.  The cash surrender value of a life insurance policy is typically included in elective share calculations, if the policy is owned by the deceased.  Because term life insurance is not included in these calculations, the use of term insurance policies can avoid the elective share.  The insurance must name as beneficiaries the people other than the spouse to be disinherited.  If there is no beneficiary designation or the beneficiary designation names the estate, a portion of the death benefit will be paid to the surviving spouse through the elective share.
  3. Prepare Proper Estate Planning Documents.  In most states, including Florida, the surviving spouse must take affirmative steps, within relatively short timeframes, to claim the elective share.  See Deadlines and Timelines In Florida Probate. If the surviving spouse dies before making the election, the election cannot be made by the personal representative of the second to die spouse.  If the surviving spouse becomes incapacitated, typically the election can only be made with court approval.  Better to have a comprehensive estate plan that disinherits the spouse, because the surviving spouse might not, for whatever reason, make the elective share election.
  4. Private Foundation.  For the wealthy, a private foundation can be a great way to disinherit a spouse.  By transferring assets to the foundation during life, the assets are not included in the elective share calculations.  By placing the desired heirs in charge of the foundation (for example children from an earlier marriage), those heirs will have significant control over the funds. The foundation has to be funded before death for this to work.  In Florida, any gifts made within a year of death are pulled back into the elective share calculation – so the funding of the foundation has to be done at least one year before death.
  5. Domestic Irrevocable Trust / Lifetime Gifting.  Giving assets away prior to death can avoid the elective share  In Florida, assets transferred more than one year prior to death are excluded from the elective share calculation.  In order to work, however, the gift must be a bona fide and complete gift.  Likewise, assets transferred to a domestic irrevocable trust will likely avoid the elective share.  In order to work in Florida, the transfer must be made at least one year prior to death and all rights to the assets in the trust must be given up permanently. 
  6. Offshore Trusts.  An offshore trust in the proper jurisdiction will probably avoid the elective share entirely.  The United States court will have no jurisdiction to compel the trustee of the foreign jurisdiction to turn over the assets of the offshore trust.  I have a residual concern, however, that the court in the United States could compel any United States person to turn over assets received from the offshore trust to satisfy the elective share.  I am not aware of any reported cases that say this, but am cautious of this possible outcome. 
  7. Move to a Community Property State.  Some community property states do not adequately take into account the rights of spouses where the married couple moves from a common law state to a community property state.  Most community property regimes are focused on how the community property should be handled  – not property acquired in a non-community property state prior to the move.  Therefore, a move to a community property state might defeat the ability of a spouse to inherit non-community property that is titled only in the name of the deceased spouse.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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