Florida Probate Law: Understanding Surviving Spouse’s Rights Under Florida Probate Law: Elective Share, Family Allowance, and More

Navigating the aftermath of a loved one’s death is never easy—especially when legal and financial issues arise. For surviving spouses in Florida, understanding your rights is essential. Florida Probate Law provides specific protections for spouses, even when they are disinherited or overlooked in a will. If you are a surviving spouse in Florida, you may still be entitled to a portion of the estate under the law.

This article explains the most important rights a surviving spouse may assert under Florida Probate Law, including elective share, family allowance, and exempt property, and how prenuptial agreements may impact those rights. Whether you’re an heir, executor, or concerned spouse, working with a Florida Probate Lawyer or Florida Probate Attorney can ensure your rights are protected throughout the process.

What Is Florida Probate Law?
Why Spouse Rights Are Protected in Probate
Elective Share Rights in Florida
How Prenuptial Agreements Affect Spousal Rights
What Is a Family Allowance?
Understanding Exempt Property Under Florida Probate Law
Can a Spouse Be Disinherited?
The Role of a Florida Probate Lawyer in Enforcing Spouse Rights
Contesting a Will as a Surviving Spouse
Common Probate Litigation Issues Between Surviving Spouses and Heirs
How to File an Elective Share Election
How a Florida Probate Attorney Can Help

1. What Is Florida Probate Law?

Florida Probate Law governs how a deceased person’s assets are transferred after death. Probate is the legal process through which the decedent’s debts are paid and property is distributed. If the decedent had a will, probate ensures its validity. If not, Florida’s intestacy laws determine who inherits.

Under Florida Probate Law, the surviving spouse holds a unique legal status. The law assumes that spouses have shared financial lives, so disinheriting a spouse is not always final—there are statutory rights a spouse can claim regardless of the will’s language.

In fact, Florida law has evolved specifically to protect surviving spouses from being unfairly excluded from an estate. Legislators have enacted a series of statutory rights—including elective share, exempt property, family allowance, and homestead protections—to ensure that spouses are not left destitute after the death of a partner. These rights reflect a public policy favoring the financial security of the surviving spouse, even in cases of strained relationships or second marriages.

A Florida Probate Lawyer will understand how these protections have developed over time and how courts interpret them today. This includes changes in how courts calculate the elective estate, treat joint assets, and evaluate the enforceability of prenuptial agreements. Whether dealing with a contested will or a complex blended family situation, a knowledgeable probate attorney can identify which rights apply and how to enforce them in court, ensuring that the surviving spouse receives the full benefit of the law’s evolving protections.

2. Why Spouse Rights Are Protected in Probate

The Florida Legislature recognizes that surviving spouses may face financial insecurity after the death of their partner. Probate laws in Florida offer statutory safeguards to prevent complete disinheritance, especially when a spouse has contributed to the household, supported the deceased, or given up employment for the family.

These protections include:

The right to an elective share
The right to a family allowance
The right to exempt property
Rights under homestead protections

These rights are designed to reflect the realities of marital partnerships and to ensure that spouses are not penalized for relying on joint financial planning during the marriage. Even when a will appears to exclude the spouse or leave only a nominal amount, the law steps in to ensure minimum guarantees are met.

A knowledgeable Florida Probate Attorney can evaluate which rights apply and how to assert them. They can also coordinate the filing of timely petitions, contest any waivers that were improperly executed, and defend the spouse’s claims in probate court. In high-conflict or high-value estates, early legal intervention is crucial to prevent irreversible harm and to secure the financial stability the spouse deserves under Florida law.

3. Elective Share Rights in Florida

The elective share is one of the most powerful protections available to surviving spouses under Florida Probate Law. Codified in Florida Statutes § 732.201 through § 732.2155, the elective share gives a surviving spouse the right to claim 30% of the elective estate, regardless of whether they were named in the will or completely disinherited.

What makes the elective share especially significant is the broad definition of the “elective estate.” It includes far more than traditional probate assets. The elective estate can also encompass:

Joint accounts
Revocable living trusts
Payable-on-death (POD) accounts
Transfer-on-death (TOD) deeds
Certain inter vivos gifts made close to death

This expansive reach prevents a decedent from using non-probate transfers to circumvent a spouse’s legal rights. In essence, it ensures that a spouse cannot be cut out of an estate by moving assets into trusts or survivorship accounts.

To assert the elective share, the surviving spouse must file a timely election—within six months of receiving the notice of administration and no later than two years after the decedent’s death. Missing this deadline can result in a complete forfeiture of the right.

Because calculating the elective estate often involves complex legal and financial analysis, the guidance of a seasoned professional is crucial. A Florida Probate Lawyer can evaluate the estate, uncover hidden or non-obvious assets, and ensure the elective share is properly calculated and enforced in probate court.

4. How Prenuptial Agreements Affect Spousal Rights

While Florida Probate Law provides significant protection to surviving spouses, prenuptial agreements (and postnuptial agreements) can waive those rights.

A valid prenuptial agreement may waive:

The elective share
Rights to homestead property
The family allowance
Exempt property rights

However, Florida courts will scrutinize these waivers closely. The agreement must be:

In writing
Voluntarily signed
Executed with full financial disclosure
Not unconscionable

A surviving spouse may challenge the validity of a prenup if they were unaware of the decedent’s assets or signed under duress. An experienced Florida Probate Attorney can help evaluate the enforceability of the agreement and determine whether spousal rights may still apply.

5. What Is a Family Allowance?

Under Florida Statute § 732.403, a family allowance provides up to $18,000 to the surviving spouse or, if none, to the decedent’s minor children during the course of probate. The purpose of the family allowance is to ensure that dependents of the decedent are not left financially stranded while the estate is being administered—a process that can take months or even years.

Key points:

It is not automatic—a petition must be filed with the probate court.
The allowance can be paid as a lump sum or in installments, depending on the needs of the spouse or children.
It is in addition to other statutory rights, such as elective share, homestead, or exempt property entitlements.
The probate judge has discretion to grant or deny the request and determine the amount and manner of payment.

The family allowance is considered a priority administrative expense, meaning it gets paid before most other claims or distributions from the estate. However, it does not apply to adult children or stepchildren unless they were legally adopted and financially dependent on the decedent.

Importantly, the request must be made during the probate process and before final distribution of the estate. If the estate is insolvent, the court may still grant a partial allowance based on available funds. A Florida Probate Lawyer can ensure that the petition is timely, properly supported with documentation, and positioned to withstand any objections from other heirs or creditors.

6. Understanding Exempt Property Under Florida Probate Law

Florida gives the surviving spouse the right to exempt property under § 732.402, Florida Statutes. This includes:

Household furniture and appliances up to $20,000
Two motor vehicles (used regularly by the deceased or family)
Tuition programs or specific qualified savings accounts
Certain death benefits or retirement plans

These assets are not subject to creditor claims and pass directly to the surviving spouse (or qualifying children), providing immediate financial support without being tied up in probate. Importantly, exempt property rights apply in addition to any other rights the spouse may have—such as elective share or family allowance.

However, this benefit is not automatic. The surviving spouse must formally petition the court to claim exempt property, and this must be done within four months of being served with the notice of administration. Missing this deadline may result in forfeiture of valuable assets that would otherwise bypass both creditors and probate delays.

A seasoned Florida Probate Lawyer will ensure the timely and accurate filing of the petition and supporting documents. They will also identify all qualifying property and address potential challenges from creditors or competing heirs. Because some personal representatives may overlook or undervalue exempt property, it’s critical to have an advocate who knows how to protect your entitlements and prevent unnecessary losses. Exempt property can make a major difference in a spouse’s financial stability during probate.

7. Can a Spouse Be Disinherited?

Yes—but not easily. Under Florida Probate Law, even if a spouse is completely disinherited in a will, they may still have a legal right to a portion of the estate. Spousal rights in Florida are protected by a combination of statutory entitlements and equitable principles. Simply leaving a spouse out of a will is not always legally effective.

Disinheritance may be ineffective if:

The spouse was omitted from a will drafted before marriage (pretermitted spouse)
The spouse timely claims an elective share under Florida Statutes
A prenuptial agreement attempting to waive rights is found to be invalid or unconscionable
The will was the product of fraud, undue influence, or lack of testamentary capacity

Additionally, disinheritance often triggers litigation, especially in blended family scenarios where the decedent’s children from a prior relationship attempt to exclude the surviving spouse entirely. This is where hiring a Florida Probate Lawyer becomes critical.

A knowledgeable Florida Probate Attorney can file formal objections, initiate will contests, and assert all available statutory and equitable claims on behalf of the spouse. Whether the issue involves homestead rights, elective share, or challenging the validity of a will or trust, a skilled legal advocate ensures that the surviving spouse receives the protections guaranteed under Florida Probate Law.

Failing to take prompt legal action can result in forfeiture of these rights. A Florida Probate Lawyer will evaluate the situation and file the necessary pleadings to protect the surviving spouse’s interests in probate court.

8. The Role of a Florida Probate Lawyer in Enforcing Spouse Rights

Navigating probate without professional help is a risk, especially for surviving spouses trying to secure what they are legally entitled to. A seasoned Florida Probate Lawyer will:

Evaluate all spousal entitlements under Florida Probate Law
File the elective share election timely and correctly
Contest improper prenuptial waivers
Request family allowance and exempt property
Protect assets from creditor claims
Initiate litigation if necessary

These matters involve strict deadlines, procedural rules, and complex asset evaluations. Mistakes—like missing a filing deadline or misidentifying non-probate assets—can cost the spouse tens or even hundreds of thousands of dollars. The surviving spouse may also be facing emotional distress, family conflict, or resistance from adult children or co-beneficiaries, which adds to the difficulty.

An experienced Florida Probate Attorney ensures that no deadlines are missed and no opportunities are overlooked. They work to preserve all statutory rights, uncover hidden or misclassified assets, and make sure the surviving spouse receives every legal protection available under current probate law. Whether settling matters amicably or fighting in court, the right attorney provides clarity, direction, and results.

9. Contesting a Will as a Surviving Spouse

Sometimes, it’s not just about claiming a share of the estate—it’s about invalidating the will entirely. A spouse can contest the will under Florida law for reasons such as:

Lack of testamentary capacity
Undue influence
Fraud or duress
Forgery

Florida Probate Courts are strict with deadlines. A will contest must usually be filed within 90 days of receiving the notice of administration (or 20 days if formal notice was received before probate started). A Florida Probate Lawyer can determine if a will contest is appropriate and represent the spouse in court.

10. Common Probate Litigation Issues Between Surviving Spouses and Heirs

Probate litigation often arises between surviving spouses and children from a prior marriage. Common conflicts include:

Disputes over elective share calculation
Arguments about prenuptial waivers
Disagreements over property characterization (marital vs. non-marital)
Contests over trust or life insurance beneficiary designations

If an adult child of the deceased is serving as personal representative, there may be tension and perceived bias. In such cases, having a Florida Probate Attorney on your side levels the playing field.

11. How to File an Elective Share Election

To make an elective share claim, the spouse (or their attorney) must:

File a Notice of Election to Take Elective Share in the probate case within 6 months of service of the notice of administration, but no later than 2 years after the date of death.
Identify and calculate the full elective estate—including non-probate assets.
Serve the notice on all interested parties.
If necessary, file objections to creditor claims or request valuation adjustments.

The process is technical. Missing a step or deadline can forfeit the entire elective share. A Florida Probate Lawyer ensures compliance with all procedural requirements.

12. How a Florida Probate Attorney Can Help

No two estates are the same. Some involve family trusts, while others include cross-border assets or businesses. A skilled Florida Probate Attorney provides more than basic filings—they offer strategic counsel, advocacy, and protection of rights.

They assist with:

Identifying hidden or omitted assets
Evaluating the enforceability of prenuptial agreements
Coordinating with financial experts for asset valuation
Negotiating with heirs and trustees
Litigating complex probate and trust disputes

When your financial future is on the line, don’t go it alone. Hire a trusted Florida Probate Lawyer to guide you through the process and secure what the law entitles you to.

Summary: What Every Surviving Spouse Should Know

Florida Probate Law offers strong protections to surviving spouses.
Even if disinherited, a spouse may claim 30% of the elective estate.
Prenuptial agreements can waive rights—but only if valid under Florida law.
Spouses may also claim a family allowance of up to $18,000.
Exempt property passes outside of probate and is creditor-protected.
Strict deadlines apply for asserting these rights.
An experienced Florida Probate Attorney can navigate legal pitfalls and secure your entitlements.

Don’t Wait. Protect Your Spousal Rights Today.

Whether you’re in the early stages of probate or facing a contested estate, the law is on your side—but only if you act quickly and strategically. The sooner you engage a Florida Probate Lawyer, the more leverage you have in protecting your financial future. Schedule a consultation today to speak with a Florida Probate Attorney who understands the nuances of Florida Probate Law and is ready to fight for your rights.

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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.