Florida Elective Share Guide: Understanding Surviving Spouse Rights in Florida

Introduction: You Cannot Be Easily Disinherited in Florida

Losing a spouse is one of life’s most difficult transitions. Finding out you have been disinherited—or left significantly less than your fair share—adds financial panic to emotional grief.

However, Florida Probate Law is distinct in its protection of widows and widowers.

Unlike many other states, Florida public policy ensures that a surviving spouse cannot be easily written out of an estate, regardless of what a Last Will and Testament might say.

This guide explains the Florida Elective Share, a powerful statutory right that guarantees a surviving spouse a percentage of the estate, along with other critical protections like the Family Allowance and Exempt Property.

These protections exist because Surviving Spouse Rights in Florida are grounded in the principle that marriage creates enforceable legal and financial expectations.

Under Florida Probate Law, a surviving spouse is not treated as just another beneficiary, but as a protected party with statutory entitlements that override many estate planning documents.

The most significant of these protections is the Florida Elective Share, which allows a surviving spouse to claim a defined portion of the estate even when a will or trust attempts to limit or eliminate that inheritance.

The Elective Share in Florida applies to a broad range of assets, including certain non-probate transfers, making it a powerful tool for correcting inequitable estate plans. Collectively, these Surviving Spouse Rights ensure that a surviving husband or wife is not left financially vulnerable at a time of profound personal loss.

What Is the Florida Elective Share?

The Elective Share is a safety net provided by Florida Statute §§ 732.201–732.2155. It allows a surviving spouse to “elect” to take 30% of the “elective estate” instead of what they were left in the decedent’s Will.

Many people assume probate only covers assets in the Will. However, the elective share is far more robust.

It is designed to prevent a spouse from funneling money into accounts that bypass probate (like trusts or joint accounts) to disinherit their partner.

Under Florida Probate Law, the Florida Elective Share reflects a deliberate policy choice to prioritize fairness over testamentary freedom when it comes to spouses.

These statutory protections are a core component of Surviving Spouse Rights in Florida, ensuring that a surviving husband or wife cannot be left without meaningful financial support.

The Elective Share in Florida reaches beyond traditional probate assets and includes many transfers that occur at death, such as revocable trusts and certain beneficiary designations.

This expansive reach reinforces the broader framework of Surviving Spouse Rights, which exists to balance individual estate planning decisions against the economic realities of marriage.

By allowing a surviving spouse to override an inequitable estate plan, the elective share operates as a corrective mechanism designed to preserve financial stability and prevent intentional or inadvertent disinheritance.

Who Is This For? (And Who Is It Not For?)

It IS for: Legally married surviving spouses in Florida who have been disinherited, left a nominal amount, or whose inheritance under the Will is less than 30% of the total assets.
It IS NOT for: Divorced spouses, long-term partners who were never legally married, or spouses who signed a valid Prenuptial Agreement waiving these specific rights.

Common Myths About Disinheritance and Spousal Rights

Before making any decisions, let’s debunk the most common myths using the realities of Florida Probate Law:

Myth: “My spouse left me $1 in the Will, so that’s all I get.” Fact: False. Under Surviving Spouse Rights in Florida, you cannot be completely disinherited unless you signed a valid prenuptial agreement. You have the right to reject the $1 and instead claim the Florida Elective Share, which guarantees you 30% of the estate.
Myth: “The estate has too much debt, so I will inherit nothing.” Fact: False. Surviving Spouse Rights prioritize your well-being over most creditors. You are entitled to a Family Allowance of up to $18,000 for maintenance during the probate process. This allowance takes priority over most claims against the estate, ensuring you receive immediate financial support before other creditors get paid. Additionally, Exempt Property (such as household furniture and two personal vehicles) is protected from all claims against the estate.
Myth: “He put everything in a Trust, so the Elective Share doesn’t apply.” Fact: False. The Elective Share in Florida is robust. The “elective estate” includes not only the probate estate but also a broader range of assets, such as those held in revocable trusts and jointly held accounts. A spouse cannot simply move money into a trust to hide it from you.
Myth: “The house was in his name only, so I have to leave.” Fact: False. The Florida Constitution grants a surviving spouse the right to occupy the homestead property, which is protected from most creditors. Furthermore, you may elect to take an undivided one-half interest in the homestead as a tenant-in-common with the decedent’s descendants, giving you ownership control rather than just a life estate.
Myth: “I automatically get the Elective Share without doing anything.” Fact: False. While Surviving Spouse Rights in Florida are powerful, they are not automatic. You must affirmatively file an election with the court within strict statutory deadlines—typically within six months of receiving the Notice of Administration. If you miss this window, you may lose your right to the Florida Elective Share forever.

Navigating Your Options: Will, Intestacy, and Elective Share

As a surviving spouse, you generally have three paths to inheritance. Understanding which path applies to you is critical to securing your full share of the estate.

Under Florida Probate Law, a surviving spouse must evaluate three primary avenues for inheritance:

1. Accepting the Will

When a valid will exists, the surviving spouse may accept what was left to them or determine whether those provisions adequately reflect their legal entitlements.

If the Will leaves you more than 30% of the assets and the estate is solvent, accepting the Will is often the simplest path.

2. The Intestate Share (No Will)

If no will exists, Surviving Spouse Rights in Florida under intestacy statutes may control how the estate is divided, often resulting in a larger share.

When a partner passes away without a valid will, or when estate planning documents are unclear, state law dictates how assets are distributed.

If your deceased spouse died intestate, intestate succession laws determine who inherits the decedent’s probate estate.

If there are no children: The surviving spouse is entitled to the entire estate.
If there are shared children: If all lineal descendants are also your children, you typically inherit the entire estate.
If there are step-children: If the decedent’s descendants are from a prior relationship, the intestate estate is split. The surviving spouse may receive 50%, while the lineal heirs receive the remaining one half interest.

This division applies to intestate property, marital assets, and other intestate property that does not have a designated beneficiary.

It is vital to distinguish between marital property and separate property, as property passing through intestacy follows strict statutory rules regardless of family dynamics.

3. The Pretermitted Spouse Share

One of the most overlooked protections in Florida statute is designed for the pretermitted spouse.

This occurs when a person writes a Will but then gets married afterward and dies without updating their estate plan.

Under Florida law, the state assumes the decedent did not intend to disinherit their new partner.

Consequently, the pretermitted spouse is often entitled to an intestate share—effectively receiving the same portion of the estate they would have gotten if there were no Will at all.

Critical Protections: Homestead, Allowances, and Exempt Property

Beyond the elective share, Florida law provides immediate liquidity and housing protection through other mechanisms that activate the moment a spouse passes.

The Life Estate and Homestead Property Rules

One of the most valuable assets in a spouse’s estate is often the primary residence.

Florida provides unique protection for an interest in the homestead.

If the home was titled solely in the decedent’s interest and not held in joint tenancy with a survivorship form, specific rules apply upon the spouse’s death.

Life Estate vs. Tenant in Common: Historically, a spouse received a life estate for the surviving spouse’s lifetime, with the remainder going to the children. However, you may now elect to take an undivided one half interest in the homestead as a tenant in common with the lineal descendants.
Why choose the 50% interest? Unlike a life estate, which limits your ability to sell, the undivided one half interest gives you ownership control. This election must be recorded in the official record books and involves a specific legal description of the real property.

Family Allowance

Under Florida Statute § 732.403, you may petition for a reasonable allowance of up to $18,000.

The family allowance is designed to provide immediate financial support to the surviving spouse and minor children during the probate process.

This is designed to support you and any minor children during the probate proceedings. It is paid in addition to the elective share and has priority over most debts.

Exempt Property

Under § 732.402, you are entitled to certain property free from creditor claims, including household furniture (up to $20,000) and two personal vehicles used by the family.

Common Challenges: Disinheritance, Prenups, and Litigation

Understanding Florida law regarding inheritance can be confusing. Whether you are concerned about a prenup Florida agreement or simply asking, “What is a surviving spouse entitled to?“, knowing the answers is essential.

Does a Spouse Automatically Inherit Everything in Florida?

Clients often ask, “Does a spouse automatically inherit everything in Florida?” or “Does the spouse get everything after death?” The answer depends on Florida inheritance laws spouse statutes.

Does a spouse automatically inherit everything? Not always. If the deceased had children from a previous marriage, the intestate share is split.
Is Florida a community property state in death? No. Clients often ask about Florida community property laws death, but Florida is an equitable distribution state. This distinction affects marital property and rights under Florida law.
Does house automatically go to spouse after death? While Florida surviving spouse homestead rights provide protection, it is not always automatic if the deed says otherwise. Under Florida law on inheritance and FL inheritance laws, specific steps must be taken to confirm title.

Prenuptial Agreements and Spousal Rights

Many disputes arise over a prenuptial agreement Florida or pre nuptial agreement florida.

If you signed a prenuptial florida document, you may have waived certain spousal rights after death in florida.

However, a prenup Florida must meet strict fairness standards. If it doesn’t, surviving spouse rights in Florida may still apply.

Elective Share Disputes and Estate Litigation

If you are disinherited, you may need to exercise the elective share right in Florida.

The Florida elective share is a powerful tool, but the Florida elective share calculation is complex.

The elective share statute Florida dictates that the spousal elective share Florida includes assets in an elective share trust Florida.

Many heirs ask, “What is the elective share right in florida?” It is the floor of inheritance—the minimum amount you must receive.

Enforcing this often requires surviving spouse probate work or even probate litigation in florida.

If the family refuses to pay, a probate lawsuit or estate litigation may be necessary. In these high-stakes battles, you need an aggressive probate attorney who understands the nuances of the law.

Finding the best probate attorney in Florida ensures that your share of the estate is calculated correctly and paid out in full.

Protecting Marital Property and Real Property When a Spouse Dies

While statutory allowances provide a baseline, the actual distribution of assets often hinges on how property is classified during the probate process.

When a spouse dies, the line between separate assets and marital property can blur, especially if funds were commingled or if the deceased spouse’s estate includes complex investments.

Unlike a divorce, where assets are split equitably, probate relies on strict title ownership and beneficiary designations.

Identifying what truly belongs to the decedent’s estate versus what is already yours is a critical first step that often requires forensic accounting and legal intervention.

Surviving Spouse Rights in Florida Under Intestate Succession

If the estate is administered without a Will, intestate succession rules apply, but they are rarely straightforward when family members are involved.

The presence of one or more descendants from a prior relationship immediately triggers a split of the estate, reducing the spouse’s entitlement to 50%.

However, surviving spouse rights in Florida allow you to challenge the classification of assets before this split occurs.

For instance, if the personal representative improperly categorizes a joint investment as solely the decedent’s, it dilutes your inheritance.

Active legal oversight is necessary to ensure the probate process does not inadvertently favor other heirs at your expense.

Applying Florida Statute to Your Share of the Estate

The Florida statute governing probate sets a rigid hierarchy for creditor claims and distributions, which can impact your final share of the estate.

Even if you are entitled to 30% or 50%, the value of that share depends on the solvency of the decedent’s estate.

Issues often arise when a postnuptial agreement is discovered, as it may contain waivers that limit your claims to specific assets. Your attorney must evaluate the validity of such agreements under Florida statute to determine if they were executed with full financial disclosure.

Without this scrutiny, a surviving spouse may accept a reduced settlement that fails to reflect their true legal entitlement.

Real Property Disputes and Estate Administration

While homestead protections are well-known, disputes frequently arise regarding non-homestead real property, such as vacation homes or rental units.

When a spouse dies, these assets effectively become part of the probate process unless titled with survivorship rights.

The personal representative has a fiduciary duty to manage these properties, but conflicts often occur if family members wish to sell while the spouse wishes to retain the asset for income.

Securing your share of the estate often involves negotiating a “buy-out” or partition of these real property interests to prevent a forced sale that could diminish the estate’s value.

Step-by-Step Process: Claiming Your Spousal Rights

To help you convert your legal rights into financial reality, here is the process:

Consult a Surviving Spouse’s Attorney: Immediate assessment of deadlines.
File Notice of Election: Must be timely filed within 6 months of receiving the Notice of Administration or 2 years of the decedent’s death.
Discovery of Assets: Your attorney will demand an inventory of all assets (probate and non-probate) to calculate the total “Elective Estate.”
Secure Court Approval: A surviving spouse’s attorney plays a pivotal role in securing court approval for rights like the family allowance.
Satisfaction of Share: Assets are distributed to satisfy the calculated amount in the same manner required by law.

Risks, Costs, and Timeframes

Risks: If you challenge a Will unsuccessfully or miss a deadline, you may be left with nothing. A valid Prenuptial agreement is the biggest risk to these claims.
Costs: Probate litigation in florida can be expensive, but statutory fees often apply.
Timeframe: Uncontested elective share distributions can take 6-12 months. Contested valuations can drag on for years.

Why Choose Lorenzo Law?

Legal Disclaimer: The information provided here is for informational purposes only and does not constitute legal advice.

Jose Lorenzo, founder of Lorenzo Law, is an experienced Florida estate planning and probate lawyer. Whether you are dealing with death benefits, claims against the spouse’s estate, or disputes over decedent’s property, having a professional ensures assets are distributed correctly.

Our Promise: We protect the vulnerable. If you are a spouse being pushed out of an estate, we act as your shield and your sword.

Frequently Asked Questions (FAQ) Relating to Spousal Rights Under Florida Law

1. When a husband dies what is the wife entitled to in Florida? Many clients ask, “When a husband dies what is the wife entitled to?” under Florida law. Generally, a wife is entitled to at least 30% of the estate (the Elective Share), rights to the homestead (life estate or 50% interest), and a family allowance. These spouse rights after death exist to ensure the survivor is not left destitute, regardless of what the Will states.

2. Does a will override a spouse in Florida? No, does a will override a spouse in Florida? Generally, it cannot completely disinherit them. Florida law provides statutory protections that supersede the terms of a Will. Unless you signed a valid waiver (like a prenup), you can challenge a Will that attempts to leave you nothing and claim your statutory share.

3. Does the spouse automatically inherit the house? A common question is, “Does spouse automatically inherit house?” Not always. While widows rights in Florida often include homestead protections, the specific ownership depends on how the deed was titled (e.g., Tenants by the Entirety vs. Tenants in Common). If the house was solely in the decedent’s name, probate is usually required to confirm the spouse’s life estate or ownership interest.

4. Can I get the elective share if I signed a prenuptial agreement? Generally, no. If the prenuptial agreement Florida contains a valid waiver, you cannot claim it. However, if the agreement was signed under duress or without full disclosure, a Florida Probate Attorney may be able to invalidate it.

5. Does the elective share include life insurance? It depends. If the life insurance policy is payable to the estate, it is included. If it is payable to a named beneficiary, it is generally excluded from the calculation, unlike revocable trusts.

6. Can I claim the elective share if we were separated but not divorced? Yes. In Florida, you remain legally married until a final judgment. Separation does not sever your rights under Florida law.

7. How much does it cost to file for an elective share? The filing fee is nominal, but probate litigation fees vary. An experienced attorney at established law offices can help you navigate costs, sometimes recovering fees from the estate.

Contact Lorenzo Law Today about your Surviving Spouse Rights in Florida

Surviving Spouse Rights in Florida provide a powerful legal foundation for challenging estate plans that unfairly exclude or minimize a spouse’s inheritance.

Whether or not a valid will exists, Florida law ensures that surviving spouses are entitled to a fair share of the estate—even in cases of intestate succession. However, enforcing these rights is never automatic.

The Florida Elective Share is a time-sensitive claim; if you fail to file the necessary election within the strict statutory deadlines, you may lose your right to 30% of the estate forever.

Properly asserting the Elective Share in Florida often requires an in-depth analysis of estate documents, non-probate transfers, trust instruments, and potential waivers such as prenuptial or postnuptial agreements.

A Florida Probate Attorney can evaluate whether those agreements are truly valid and whether your Surviving Spouse Rights have been compromised by poor planning or questionable asset transfers designed to hide wealth.

At Lorenzo Law, we know how to assert and defend your rights effectively. We serve clients throughout the entire state of Florida, with a focus on major hubs including Miami, Fort Lauderdale, Coral Gables, West Palm Beach, Boca Raton, Orlando, Tampa, Jacksonville, Naples, Sarasota, and Gainesville. We regularly represent surviving spouses in probate courts across Miami-Dade, Broward, Palm Beach, Orange, Hillsborough, Duval, and Pinellas Counties.

Florida Probate Law Is Complex—Consult a Probate Attorney

Florida probate and inheritance laws are complex, and understanding probate law is essential for surviving spouses to ensure their rights are protected.

surviving spouse rights in florida

Consulting with a knowledgeable Florida probate attorney is crucial for navigating the intricacies of Florida Probate law and for protecting your surviving spouse rights.

An experienced attorney can help you evaluate your options, meet critical deadlines, and maximize your share of the estate under Florida Probate Law.

Contact us today at (305) 999-5411 or via our [Online Intake Form].

Let us calculate what you are truly owed.