The general rule is that when you die, you can leave your property to anybody you want to, subject to the claims of creditors. There are two major exceptions, however — your spouse (if they survive you), and any minor children enjoy certain statutory inheritance rights. Other relatives may also have rights if you die without a valid will. Following is a description of these rights.
If you die owning a home as your family’s primary residence (titled in your name only), your spouse will be entitled to the home no matter what your will says. Furthermore, your minor children will have the right to live there. If your spouse dies before you do, and if you have minor children, the children will get your home. In many cases, even creditors cannot force the sale of the home.
Marital Property Rights
Under Florida law, dying with a surviving spouse works a lot like a divorce, in the sense that your spouse will be entitled to an “equitable division” of your joint property — about 50 percent subject to certain adjustments. Keep in mind, however, that Florida is not a community property state.
The Spouse’s Elective Share
Under the spousal elective share doctrine, your surviving spouse will have a choice — inherit under your will, or take the spousal elective share instead, depending on which choice offers more (presumably). The spouse’s elective share consists of 30 percent of the elective estate, which is likely to be much larger than the probate estate.
The Elective Estate
Your spouse’s elective estate will consist of your probate estate plus:
- Any property you own in joint tenancy with the right of survivorship;
- The cash surrender value of any life insurance policy you take out on your own life;
- Your interest in any “payable on death” or “transfer on death” accounts;
- Anything held in a revocable trust for which you are the grantor;
- Death benefits from any retirement accounts you own;
- Certain property that you contributed to an irrevocable trust or that you transfer during the year before you die; and
- Your primary residence, if you own it outright and if your family uses it as a primary residence.
The Family Allowance
Probate takes a while, and your spouse might have trouble paying the bills in the meantime. Consequently, your spouse will have the right to as much as $18,000 from your estate as temporary living expenses, subject to the approval of the probate court.
Your spouse will be entitled to certain items such as furniture, vehicles and appliances, that are exempted from your probate estate. The maximum value is $20,000.
If you die without a valid will, other relatives such as your grandchildren, your parents or your siblings could enjoy rights to your property, especially if you leave no surviving spouse or children.
Any of the property rights enjoyed by your spouse can be varied or even eliminated by the terms of a valid prenuptial agreement.
Lorenzo Law Stands Ready to Assist You
If you are considering drafting or amending your will, or if you are concerned about your inheritance rights with respect to someone else’s estate, contact trusts and estates attorney Jose Lorenzo by telephoning (305) 999-5411, completing our online contact form, or visiting one of our offices in Coral Gables and Ft. Lauderdale. We accept clients from all over Florida.