Florida Surviving Spouse Rights in Probate

Florida law provides strong protections for surviving spouses. Even if a will leaves everything to someone else, the surviving spouse has rights that cannot be completely eliminated. These include the elective share, homestead rights, exempt property, and family allowance.

Overview of Spousal Rights

Categories of Protection

Florida provides several types of protection for surviving spouses:

Elective Share - Right to take a percentage of the estate regardless of the will
Homestead Rights - Cannot be disinherited from the family home
Exempt Property - Right to certain personal property
Family Allowance - Support during probate administration
Intestate Share - Inheritance rights if there is no will

These Rights Are Separate

Each right is independent. The surviving spouse can receive benefits from multiple categories.

The Elective Share

What Is the Elective Share?

Florida Statutes 732.201-732.2155 give the surviving spouse the right to claim 30% of the "elective estate" regardless of what the will says. For comprehensive details, see our Florida elective share guide.

Why It Exists

The elective share prevents a spouse from being completely disinherited. It ensures the surviving spouse receives at least 30% of what the deceased owned.

What Is Included in the Elective Estate?

The elective estate includes more than just probate assets:

Included:

Probate estate assets
Property held as tenants by the entirety
Revocable trust assets
Property transferred within 1 year of death
Joint accounts
Retirement accounts (to some extent)
Life insurance with revocable beneficiaries

Excluded:

Irrevocable life insurance trusts (if certain conditions met)
Property received by the surviving spouse already

Calculating the 30%

The elective share is 30% of the elective estate value. This is calculated after:

Subtracting valid debts
Subtracting administration expenses
Adjusting for property already received by spouse

Satisfying the Elective Share

The elective share is satisfied first from property that already passes to the spouse. Only if that is insufficient does the spouse receive additional assets from other beneficiaries.

How to Claim

The surviving spouse must file a petition with the probate court within:

6 months after receiving the Notice of Administration, OR
2 years after the decedent's death
Whichever comes first

Waiver of Elective Share

The elective share can be waived in:

Prenuptial agreement
Postnuptial agreement
Other written agreement

Requirements for valid waiver:

In writing
Signed by the waiving spouse
Fair disclosure of finances (or waiver of disclosure)
Voluntary

Homestead Rights

Constitutional Protection

The Florida Constitution protects surviving spouses regarding the family home (Article X, Section 4).

The Restriction on Devise

If the deceased is survived by a spouse (and no minor children), the homestead property can ONLY be devised to the surviving spouse. Any attempt to leave it to someone else is void.

What Happens to Homestead

Option 1: Life Estate (Default)

Spouse receives the right to live in the home for life
At spouse's death, it passes to the deceased's descendants
Spouse must maintain and pay taxes

Option 2: 50% Ownership (Must Elect)

Spouse can elect to take 50% as tenant in common
Descendants receive the other 50%
Spouse can force sale of property
Must elect within 6 months of death

Minor Children Exception

If there are minor children, the homestead cannot be devised at all. It descends according to law:

Spouse gets life estate
All descendants share remainder

See our Florida Homestead Guide for more details.

Exempt Property

What Is Exempt Property?

Certain personal property is set aside for the surviving spouse and is exempt from creditor claims.

Categories of Exempt Property

1. Household Furniture and Furnishings Up to a net value of $20,000 in:

Furniture
Furnishings
Appliances

2. Two Motor Vehicles Up to a combined value that does not exceed $10,000, if held in the decedent's name.

3. All Qualified Tuition Programs Florida 529 education savings accounts.

Claiming Exempt Property

File a petition with the probate court to have exempt property set aside.

Priority Over Creditors

Exempt property goes to the spouse even if the estate is insolvent. Only administration costs and funeral expenses have higher priority.

Family Allowance

What Is Family Allowance?

During probate administration, the surviving spouse (and dependents) are entitled to a reasonable allowance for maintenance and support. See our detailed Florida family allowance guide for eligibility and how to claim it.

Amount

The court determines a reasonable amount based on:

Spouse's standard of living
Spouse's own resources
Length of expected administration
Estate size

Family allowance is typically $18,000 or more, depending on circumstances.

Duration

Family allowance continues during administration, but not longer than:

1 year after the decedent's death, OR
The date the estate is closed
Whichever is earlier

Priority

Family allowance has Priority 5 in the order of paying estate debts. It comes before most unsecured creditors.

Claiming Family Allowance

File a petition with the probate court. The court will set the amount.

Intestate Share

If There Is No Will

When the deceased dies without a will, the surviving spouse's share depends on children:

No Descendants: Spouse receives 100%

All Descendants Are Also Spouse's Descendants AND Spouse Has No Other Children: Spouse receives 100%

Deceased Had Children From Another Relationship: Spouse receives 50%

Spouse Has Children From Another Relationship: Spouse receives 50%

See our Florida Intestate Succession Guide for details.

Comparing Spousal Rights

Elective Share vs. What the Will Provides

Situation	What to Consider
Will leaves more than 30% to spouse	Spouse takes under will
Will leaves less than 30% to spouse	Spouse can elect against will
No will	Spouse takes intestate share
Spouse already receives property	Reduces elective share claim

Making the Election

The surviving spouse must decide:

Take under the will as written
Elect to take the elective share (30%)
Take intestate share (if no will)

This is a complex decision. Consult an attorney before making an election.

Waiver and Forfeiture

Prenuptial/Postnuptial Agreements

Spousal rights can be waived by agreement:

Must be in writing
Must be voluntary
Should include fair disclosure of finances
Should be signed by both parties

Void Agreements

A waiver may be invalid if:

Obtained by fraud or duress
No fair disclosure and no waiver of disclosure
One party did not have independent counsel
Unconscionable terms

Forfeiture Situations

A surviving spouse may lose rights if they:

Filed for divorce before death (in some cases)
Abandoned the deceased
Murdered the deceased (slayer rule)

Practical Considerations

Deadlines

Right	Deadline
Elective share election	6 months from Notice of Administration OR 2 years from death
Homestead election	6 months from death
Exempt property claim	During administration
Family allowance claim	During administration

Working With the Personal Representative

The surviving spouse should:

Request copies of all probate filings
Review the inventory and appraisement
Understand what the will provides
Calculate what each option provides
Make informed elections

Getting Legal Advice

Spousal rights in Florida are complex. Factors to consider:

What the will provides
Value of the elective estate
Tax implications
Homestead considerations
Relationship with other beneficiaries

An attorney can help calculate the best option.

Frequently Asked Questions

Can I be disinherited by my spouse in Florida?

Not completely. Florida law guarantees the surviving spouse at least the elective share (30%), homestead rights (if applicable), exempt property, and family allowance.

What is the elective share in Florida?

The elective share is the right to claim 30% of the "elective estate" regardless of what the will says. It protects spouses from being disinherited.

How long do I have to make an election?

For the elective share: 6 months after receiving the Notice of Administration or 2 years after death, whichever is first. For homestead: 6 months from death.

Can I waive my spousal rights?

Yes, in a prenuptial or postnuptial agreement. The waiver must be in writing, voluntary, and typically include fair financial disclosure.

What happens to the house when my spouse dies?

If it is homestead, you cannot be disinherited. You receive either a life estate (right to live there for life) or can elect to take 50% ownership within 6 months.

Related Guides

Sources:

"Florida Statutes Sections 732.201-732.2155," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/732.201
"Florida Statutes Section 732.401-732.4015," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/732.401
"Article X, Section 4, Florida Constitution," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Constitution#A10S04
"Consumer Pamphlet: Probate in Florida," The Florida Bar, 2024, https://www.floridabar.org/

This guide provides general information about surviving spouse rights in Florida. Consult with a Florida probate attorney for advice specific to your situation.