In Florida, What are the Inheritance Rights of Spouses?

Jul 11, 2022 | Estate Planning Legal Blogs | Elder Law P.A

When a person dies, his or her surviving spouse has certain rights to the person’s assets that almost no one else does, and that’s just as true in the state of Florida as it is anywhere else in the nation. Florida law benefits the surviving spouse’s rights for almost all of a decedent’s estate. Even if a spouse was disinherited, he or she may be entitled to a share of the assets. What exactly are the inheritance rights of spouses in the state? Understanding the answer to those questions may help you better plan your estate.

Establishing Ownership

One key to spousal inheritance in Florida is to show who owned it in the first place. In the state, ownership is determined by one of two things – whose name is on the title or whose income was actually used to purchase the asset.

The Terminology

Outside of ownership and wills, the inheritance rights of spouses are broad when it comes to the deceased spouse’s property. These rights include the following:

  • A family allowance
  • Exempt property
  • Pretermitted spousal share
  • Intestate share
  • Homesteady property rights
  • Elective share

Not sure what any of those mean? This is where things get a bit complex. Let’s start with family allowance. The surviving spouse (and any children) who were supported by the decedent while he or she was alive are given an “allowance” while the probate process happens. That allowance can’t exceed $18,000, but the actual amount is up to the judge.

Exempt property just refers to certain personal property to which a surviving spouse is legally entitled. That usually means things like household furniture, cars, appliances, or artwork. Anything that a creditor can claim, however, doesn’t fall into this category.

In the context of the inheritance rights of spouses, ‘pretermitted spousal share’ is a slightly tougher term to explain. This just means that if the decedent created a will before the marriage took place, the surviving spouse can still get a share of that will that’s equal to the share he or she would have gotten had they been married before the will was created. There is, however, a possibility that the will can be amended to exclude the surviving spouse.

Intestate share happens when the court has to take over the estate because the decedent dies without a will in place. If that happens, inheritance rights of spouses dictate that the surviving spouse gets everything if the decedent had no children. If the decedent had children (who are not blood-related to the surviving spouse), the spouse is given 50% and the children are given the remaining 50% to be split equally among them.

Homestead property rights also figure into this equation. As long as the decedent didn’t leave a will that specifically states the home should be sold or given to someone other than his or her spouse or another qualified heir, the spouse automatically inherits the property.

The elective share is the final important note when it comes to the inheritance rights of spouses. In the state of Florida, the surviving spouse has an equal right to receive an elective share of about 30% of the elective estate, which just includes all of the property owned by the decedent.

Let Us Help with Estate Planning

Understanding the inheritance rights of spouses after the other has died is a complex subject. If you’re not sure about what will happen to your estate after you’ve gone, give us a call. We can help build an estate plan that helps you learn exactly what to do so your wishes are carried out legally. Contact us today!

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