Does a Spouse Automatically Inherit Everything in Florida?

May 31, 2022 | Estate Planning Legal Blogs | Elder Law P.A

Does a spouse automatically inherit everything in Florida? The good news is that Florida has very spouse-friendly survival laws. According to the Florida Probate Code, in most cases, the surviving spouse will be entitled to some or all of the estate, including the following:

  • Elective share of any cash and investments
  • Family allowance
  • Homestead property
  • The intestate share of the probate estate
  • Exempt property
  • Pretermitted spousal share of the estate


Florida’s homestead rule means that irrespective of what one writes in the will, the home will go to the spouse after the death of the decedent, and this is especially true if there is a minor child.

Intestate Share

If one spouse dies without a valid will, the intestate laws come into play. This means that the surviving spouse will receive the share of the estate as follows:

  1. The entire estate if the decedent had no other family
  2. The entire estate if all the children belong to the surviving spouse
  3. Receive 50% of the estate if there are descendants of the decedent who are not the biological children of the surviving spouse
  4. Receive half the estate if there are children who belong to both the surviving and decedent spouse, but the surviving spouse also has other children from a previous marriage

Elective Share

Does a spouse automatically inherit everything in Florida? According to Florida law, the surviving spouse cannot be denied receiving the decedent’s share of the trust, estate, or property. The surviving spouse has the legal right to make an election to obtain a share of the deceased spouse’s estate. At the moment, the elective share in Florida is 30 percent. The majority of the assets belonging to the decedent are subject to the elective share option. The surviving spouse has the option of choosing whether to accept what is granted under the decedent’s will/trust or accept the elective share.

Exempt Property

The surviving spouse is also entitled to receive the assets from the decedent’s probate estate, which is often designated as “exempt property” and usually includes home furnishings, furniture, and appliances up to a net value of $20K. In addition, the spouse will be entitled to two motor vehicles that were regularly used by the decedent. There may be some restrictions on the make, model, and size of the vehicle. Further, the spouse may also be entitled to certain death benefits that are usually paid to school administrators and teachers. The exempt property is in addition to the elective share inherited by the intestate succession law.

Family Allowance

Under Florida law, the surviving spouse can also receive a reasonable allowance of funds that are payable from probate assets for maintenance while the probate is being completed. The maximum allowance is $18K, which can be paid in installments or a lump sum. This allowance is not automatic and can only be awarded after a hearing by the probate judge. While the spouse does not have to show a need for the allowance, some justification of the amount is needed by the court.

Pretermitted Spousal Share

If an individual makes a will and then gets married but dies shortly thereafter, the surviving spouse will receive an intestate share. However, the pretermitted spousal share may not be possible under the following circumstances:

  1. If there was a pre or postnuptial agreement that provided for the spouse or there may be a spousal waiver
  2. If the will clearly states an intention not to make any provisions to the spouse

In these circumstances, it is important for the surviving spouse to consult with an estate lawyer to determine her rights and share of the estate.

The good news is that in Florida, the surviving spouse has rights to the decedent’s property whether or not the deceased spouse had made provisions in the will. In addition, the rights also include homestead property rights, family allowance, intestate share, and elective share.

Death Tax Florida

When it comes to a death tax Florida does not have one. The state constitution makes it illegal to collect a death tax Florida. Besides the gorgeous and warmer weather, this is part of what makes Florida such an attractive state to settle in for wealthy individuals.


Does a spouse automatically inherit everything in Florida? In the Sunshine State, a surviving spouse will automatically inherit by law any property titled jointly with rights of ownership; further, joint properties are not subject to probate. Similar to joint property, the homestead property will automatically pass to the surviving spouse. In addition, the law in Florida provides the surviving spouse a life estate in the homestead property, which means the surviving spouse can reside in the property for the rest of his or her life.

If you are a surviving spouse and are confused by all this, the best recommendation is to speak with a knowledgeable and experienced attorney. The lawyer can advise you of your rights and educate you on what part of the estate will be passed to you and what your options may be. For the most part, a surviving spouse gets everything that belonged to the decedent unless other provisions have been made in the will. The firm of Elder Law, P.A. are experts in wills, testaments, trusts, along with many other matters. Call them today at 1-561-933-4681. The initial consultation is free.

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