Understanding Surviving Spouse Rights in Florida Probate Law: Elective Share in Florida, Family Allowance, and More

Surviving Spouse Rights in Florida provide a legal foundation for challenging estate plans that unfairly exclude or diminish a spouse’s inheritance. 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. Surviving Spouse Rights in Florida exist to ensure that no spouse is left vulnerable or forgotten during one of life’s most difficult transitions.

Surviving Spouse Rights in Florida are designed to prevent unjust disinheritance and ensure a minimum inheritance. The elective share in Florida allows a disinherited spouse to claim up to 30% of the elective estate, regardless of what the will provides. Understanding these rights early can prevent costly litigation and protect your financial future.

This article explains the most important rights a surviving spouse may assert under Florida Probate Law, including the elective share in Florida, 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.

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.

Surviving Spouse Rights in Florida are not merely theoretical—they provide real, enforceable protections when disputes arise. For example, the elective share in Florida allows a surviving spouse to claim 30% of the elective estate, even if they were completely disinherited in the will. This mechanism is a direct application of the public policy described above, ensuring that no spouse is unfairly cut out or left without financial support. Whether in a contested probate or a quiet administration, these rights serve as a vital safety net.

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 Surviving Spouse Rights in Florida Are Protected in Probate

Surviving Spouse Rights in Florida reflect a public policy commitment to protecting spouses from being unfairly excluded or disinherited. The Florida Legislature recognizes that surviving spouses may face financial insecurity after the death of their partner. Florida law recognizes Surviving Spouse Rights in Florida as fundamental protections that include homestead rights, elective share, family allowance, and exempt property. 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 in Florida
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.

Among the most critical Surviving Spouse Rights in Florida is the elective share in Florida, which functions as a statutory failsafe. It ensures a surviving spouse receives 30% of the elective estate—even if the will says otherwise. Enforcing this right requires strategic action and strict compliance with procedural rules, making experienced legal guidance essential. Surviving Spouse Rights in Florida are among the most robust in the nation, with the elective share in Florida serving as a key safeguard against disinheritance.

3. Elective Share Rights in Florida

The elective share in Florida is one of the most powerful and far-reaching protections available under Florida Probate Law. Codified in Florida Statutes §§ 732.201–732.2155, it empowers a surviving spouse to claim 30% of the elective estate—even if they were entirely disinherited or left only a token amount in the will. This provision is central to Surviving Spouse Rights in Florida and reflects the state’s firm public policy against financial abandonment of a spouse after death.

What sets the elective share apart is the broad and inclusive definition of the “elective estate.” Unlike traditional probate, which only includes assets passing under a will, the elective estate sweeps in a wide array of non-probate transfers. This can include:

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

This expansive scope ensures that a decedent cannot sidestep a spouse’s legal rights by moving assets into trusts or survivorship accounts. In essence, the elective share in Florida serves as a statutory backstop, preserving the surviving spouse’s right to a fair portion of the estate regardless of how the decedent tried to title or distribute property before death.

To enforce this right, the surviving spouse must act fast. The election must be filed within six months of receiving the notice of administration and, in all cases, no later than two years from the date of death. Failure to meet this strict deadline results in permanent forfeiture. Given these unforgiving timelines, delay is not an option.

Because identifying and valuing the elective estate often involves tracing hidden assets, analyzing trust documents, and litigating disputed transfers, professional legal guidance is indispensable. A seasoned Florida Probate Lawyer can ensure full compliance with procedural requirements while aggressively protecting the Surviving Spouse Rights in Florida. From initiating the elective share election to litigating contested issues in court, having the right legal advocate can mean the difference between securing your rightful share or being left with nothing.

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 Florida Probate Attorney can assess whether Surviving Spouse Rights in Florida have been compromised by improper estate planning or invalid waivers, and take action to enforce what the law still guarantees.

A valid prenuptial agreement may waive:

The elective share in Florida
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

In complex or high-conflict estates, legal representation is crucial to fully protecting Surviving Spouse Rights in Florida. 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.

Asserting Surviving Spouse Rights in Florida often requires court filings, legal strategy, and strict adherence to deadlines, making professional guidance essential. 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. Probate courts take Surviving Spouse Rights in Florida seriously, but it’s up to the surviving spouse to act quickly and assert those rights through proper legal channels

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. 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

Surviving Spouse Rights in Florida: 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.

One of the strongest protections for Surviving Spouse Rights in Florida is the elective share in Florida, which ensures that a spouse cannot be entirely cut out of the estate. Even if the will leaves nothing to the spouse, Florida law allows the surviving spouse to claim 30% of the elective estate—including certain non-probate assets. This statutory right reflects Florida’s public policy of preventing spousal impoverishment and overrides disinheritance efforts that may arise in complex or emotionally charged family situations.

Even when the will appears to exclude the spouse, Surviving Spouse Rights in Florida—especially the elective share in Florida—can override testamentary intent. 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 Surviving Spouse Rights in Florida

A Florida Probate Attorney can evaluate the estate and advise on which Surviving Spouse Rights in Florida apply, including how to enforce them in court. 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

Surviving Spouse Rights in Florida are often contested or ignored in high-conflict estates, making timely legal action essential to protect what the law guarantees. 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.

One common example involves the elective share in Florida, which must be formally elected within six months of receiving the notice of administration, or it is waived forever. This right allows the surviving spouse to claim 30% of the elective estate, even if disinherited. Asserting this is a key component of Surviving Spouse Rights in Florida. Failing to file properly, serve all required parties, or account for non-probate assets like jointly titled property or certain trusts can result in the complete loss of that share. A Florida Probate Attorney can ensure the timely and accurate execution of these critical rights, preventing avoidable financial loss.

One of the cornerstones of Surviving Spouse Rights in Florida is the elective share in Florida, which grants the spouse a right to 30% of the elective estate. 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

When a spouse is disinherited or left with an unfair share, asserting Surviving Spouse Rights in Florida may involve more than just filing a claim—it may require challenging the validity of the will itself. In some cases, pursuing the elective share in Florida is sufficient to recover a portion of the estate. But when there are signs of misconduct or manipulation, contesting the will becomes a necessary step to protect the spouse’s legal rights. Under Florida law, a surviving spouse can contest a will on several grounds, including:

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.

Many surviving spouses don’t realize that the elective share in Florida gives them a legal remedy, making awareness of Surviving Spouse Rights in Florida essential. In addition to contesting a will, surviving spouses may be entitled to significant statutory protections, regardless of what the will provides.

An experienced Florida probate attorney can help enforce Surviving Spouse Rights in Florida, including filing for the elective share in Florida within the statutory deadline, ensuring that no critical right is forfeited due to procedural missteps.

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 the validity of wills, hidden assets, and attempts to diminish the spouse’s share. In these cases, Surviving Spouse Rights in Florida can take priority over the claims of adult children—but only if properly asserted and defended with experienced legal counsel. 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. This is especially important when asserting Surviving Spouse Rights in Florida, such as the elective share in Florida, which may directly conflict with the interests of other heirs or beneficiaries.

A Florida Probate Lawyer acts as your advocate throughout the process, making sure your voice is heard and your statutory rights are fully enforced. These statutory rights include critical protections like the elective share in Florida, exempt property, and family allowance—each designed to ensure that surviving spouses are not left financially stranded.

Asserting these Surviving Spouse Rights in Florida often requires timely filings, asset valuations, and strategic responses to opposing heirs or personal representatives. Whether you’re enforcing a claim to your elective share or challenging a will that attempts to disinherit you, experienced legal counsel ensures that no right is overlooked or forfeited. Don’t navigate this process alone—protect what Florida law guarantees you.

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 elective share in Florida is a statutory right that prevents a surviving spouse from being completely disinherited. Florida law ensures that, regardless of what the will says, a spouse may claim a share of the estate to protect their financial future.

Surviving Spouse Rights in Florida are not automatic—they must be properly asserted within the time limits and according to strict statutory procedures. The elective estate includes a wide range of assets, from jointly held property to certain transfers made before death, making valuation and discovery especially complex. Moreover, disputes over prenuptial agreements, creditor claims, or omitted assets can complicate the process.

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

12. How a Florida Probate Attorney Can Help

Enforcing Surviving Spouse Rights in Florida often requires an in-depth analysis of estate documents, asset transfers, and potential waivers. 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

For those asserting Surviving Spouse Rights in Florida, having experienced legal representation is critical. Whether the issue involves homestead rights, exempt property, or the elective share in Florida, your attorney ensures no right is waived or ignored. Surviving Spouse Rights in Florida carry significant financial value but must be proactively asserted to be preserved.

A Florida Probate Attorney can assess whether Surviving Spouse Rights in Florida have been compromised by improper estate planning or invalid prenuptial agreements. 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 by virtue of the Elective Share in Florida.
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.
The elective share in Florida includes not only probate assets but also certain non-probate assets, such as revocable trusts and jointly held accounts.
Failing to timely assert the elective share in Florida can result in a complete loss of benefits, making legal guidance essential.
Surviving Spouse Rights in Florida also include potential claims for homestead property, which may grant the spouse a life estate or full ownership, depending on the circumstances.
A Florida Probate Lawyer can help enforce Surviving Spouse Rights in Florida by filing necessary petitions, defending against challenges, and ensuring proper asset valuation.

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.

Surviving Spouse Rights in Florida are powerful, but they are not automatic—you must assert them within strict legal deadlines. From homestead protections to the elective share in Florida, waiting too long can jeopardize your entire claim. A qualified attorney can ensure you don’t miss a single opportunity to secure what you’re legally entitled to. Whether you’re enforcing the elective share or challenging unfair distributions, protecting Surviving Spouse Rights in Florida starts with knowledgeable legal counsel and decisive action. Don’t delay—your financial future depends on it.

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. But enforcing those rights isn’t automatic.

Properly asserting Surviving Spouse Rights in Florida often requires in-depth analysis of estate documents, non-probate transfers, trust instruments, and any waivers such as prenuptial or postnuptial agreements. A Florida Probate Attorney can evaluate whether those agreements are valid and whether the spouse’s rights have been compromised by poor planning or questionable asset transfers.

At Lorenzo Law, we know how to assert and defend your rights effectively. Contact us today to protect your future.

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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.