Florida Probate Law: Distributions To A Surviving Spouse

If you are married at the time your current spouse dies, under Florida probate law your spouse cannot simply disinherit you, even with a valid will. Florida will grant you certain legal entitlement — the spouse’s elective share, for example — that will prevent your spouse from doing this. It could be very important for you to understand what you will be entitled to.

The Spouse’s Elective Share

A surviving spouse is entitled to the Florida “elective share” instead of the amount (if anything) that would pass to him or her under the will. The elective share is equal to 30 percent of the “elective estate”, which could turn out to be a lot more than the amount of the probate estate.

The elective estate includes:

• The probate estate (all property subject to probate);
• Property owned by the deceased spouse in joint tenancy with the right of survivorship;
• The cash surrender value of any life insurance policy taken out by the deceased spouse on his own life;
• The deceased spouse’s interest in property that is designated “payable on death” or “transfer on death”;
• Property held in a revocable trusts and certain irrevocable trusts;
• Retirement account death benefits;
• Many (but not all) types of property that may have been transferred by the deceased spouse within a year prior to death; and
• The family homestead: The family home is considered homestead property if it was owned by the deceased spouse at the time of death and it was used as a primary residence at that time.

The typical procedure is to calculate the value of the elective share, compare it to the amount the surviving spouse would otherwise inherit under the will, and then choose the most favorable option.

Family Allowance

A surviving spouse can ask the probate court to provide up to $18,000 out of the estate for his or her financial support while probate proceedings are pending. This amount is added to any other entitlements.

Exempt Property

The surviving spouse is entitled to certain “exempt property”, including household furniture and appliances up to $20,000; two vehicles and qualified tuition programs. Like the family allowance, this amount is added to any other entitlements.

Marital Rights

Under Florida law, general rule is that the surviving spouse is entitled to an “equitable division” (the baseline is 50 percent) of the couple’s property upon the death of one spouse, just as upon divorce. This rule, however,is subject to complex exceptions and adjustments. This amount is added to anything else the surviving spouse is entitled to.

Prenuptial Agreements: The Wild Card

Any of the foregoing entitlements can be altered through a valid prenuptial agreement.

Contact Lorenzo Law Today

Jose Lorenzo, founder of Lorenzo Law, is a Florida estate planning and probate lawyer who has been showered with award after award from clients and professional colleagues. Although Lorenzo Law maintains offices in Coral Gables and Ft. Lauderdale, we serve clients throughout the state of Florida. We can be reached by telephone at (305) 999-5411, through our online intake form, by email at jml@joselorenzolaw.com or by visiting one of our offices.