Surviving Spouse Rights in Florida: Homestead, Exempt Property, and Your Share
Florida gives a surviving spouse four separate protections, and they stack. The house, a package of exempt personal property, a cash allowance during administration, and — if the will leaves you too little — the right to elect 30 percent of the estate. None of them substitutes for another, and three of them carry deadlines that are not forgiving.
This page covers the first three plus your share when there is no will. The elective share has enough moving parts to need a page of its own, and it has one: the Florida elective share.
What Rights Does a Surviving Spouse Have in Florida?
Four, in the order most people encounter them. Homestead under § 732.401 protects the family home and cannot be devised away from you if you survive the owner. Exempt property under § 732.402 gives you household furnishings up to $20,000, two motor vehicles, all § 529 college plans and all § 112.1915 benefits, free of estate claims. The family allowance under § 732.403 provides up to $18,000 in cash during administration. And the elective share under § 732.2065 entitles you to 30 percent of the elective estate regardless of what the will says.
Can a Florida Spouse Be Disinherited?
Not without your written agreement. A Florida will that leaves a surviving spouse nothing does not accomplish disinheritance; it simply triggers the elective share, and the homestead restriction operates independently of the will altogether. The only reliable way a Florida spouse loses these rights is by signing them away under § 732.702 — a prenuptial or postnuptial agreement, or a property settlement made in anticipation of divorce. Absent that, the protections apply no matter how long the marriage lasted or how the will is worded.
What Happens to the House When One Spouse Dies?
If the home was the decedent’s protected homestead, the Florida Constitution restricts what could be done with it. Article X, § 4(c) provides that homestead is not subject to devise if the owner is survived by a spouse or minor child, except that it may be devised to the spouse where there is no minor child. A will purporting to leave the homestead to someone else, over a surviving spouse, does not achieve that result.
Where the homestead was not validly devised and the decedent is survived by a spouse and one or more descendants, § 732.401(1) gives the surviving spouse a life estate, with a vested remainder to the descendants living at the date of death, per stirpes. A life estate means the right to live there for life — along with the ongoing obligations that come with it.
Should You Take the Life Estate or the One-Half Interest?
Section 732.401(2) offers an alternative: in lieu of the life estate, the surviving spouse may elect to take an undivided one-half interest as a tenant in common, with the other half vesting in the decedent’s descendants. The choice is genuinely consequential and the deadline is unforgiving — six months from the date of death, during the spouse’s lifetime, and once made it is irrevocable. The time may not be extended, except that where an attorney in fact or guardian petitions for approval within the six months, the period extends at least 30 days past the order allowing it. The election is made by filing a notice containing the legal description for recording in the county’s official records.
Life Estate Versus One-Half Interest, Compared
| Life estate (the default) | Elected one-half interest | |
|---|---|---|
| Right to live there | Yes, for life | Shared — you own half with the descendants |
| Who pays taxes, insurance, upkeep | Generally the life tenant | Shared between the co-tenants |
| Can you force a sale? | No, not alone | Yes — a tenant in common can seek partition |
| What happens on your death | The interest ends; the descendants own it outright | Your half passes to your own estate and beneficiaries |
| Value credited against the elective share | One-half of the property’s value, under § 732.2095 | One-half of the property’s value, under § 732.2095 |
The rough rule: the life estate suits a spouse who intends to stay in the home and does not want the burden of co-ownership; the one-half interest suits a spouse who may want to sell, who cannot carry the whole cost of the property alone, or who wants the value to pass to their own children rather than evaporating at death.
One important limit — § 732.401 does not apply to property the decedent held as tenancy by the entireties or in joint tenancy with rights of survivorship. Property held that way passes to the survivor outright and never enters the analysis.
What Is Exempt Property and How Much Is It Worth?
Section 732.402 gives the surviving spouse — or, if there is no surviving spouse, the decedent’s children — a defined package of property that is exempt from all claims against the estate except perfected security interests. It covers household furniture, furnishings and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death; two motor vehicles held in the decedent’s name and regularly used by the decedent or immediate family, neither exceeding 15,000 pounds gross vehicle weight; all § 529 qualified tuition programs, including Florida Prepaid contracts; and all benefits paid under § 112.1915. Only the furnishings carry a dollar cap.
How Long Do You Have to Claim Exempt Property?
The right is waived if you miss it, and the window is short. Under § 732.402(6), persons entitled to exempt property are deemed to have waived their rights unless a petition for determination of exempt property is filed on or before the later of four months after service of the notice of administration, or 40 days after termination of any proceeding involving construction of the will, its admission to probate, its validity, or any other matter affecting a part of the estate subject to the section. This is the deadline most often missed, because the property involved — the furniture, the cars — feels like something nobody would dispute.
What Does a Surviving Spouse Inherit if There Is No Will?
Section 732.102 sets the intestate share, and it turns entirely on whose children are involved rather than on how many there are.
| Family situation | Spouse’s intestate share |
|---|---|
| No surviving descendants of the decedent | The entire intestate estate |
| All of the decedent’s descendants are also the spouse’s, and the spouse has no other descendants | The entire intestate estate |
| Any of the decedent’s descendants is not a descendant of the spouse | One-half |
| All descendants are shared, but the spouse has one or more descendants of their own who are not the decedent’s | One-half |
Read rows three and four together and the logic emerges: Florida gives the whole estate to a surviving spouse only where there is no risk that the spouse’s own separate line would divert the decedent’s children out of their inheritance. A single stepchild on either side halves the share.
What if the Will Was Signed Before the Marriage?
Then you may be a pretermitted spouse, and § 732.301 is one of the most useful provisions in the code for a second marriage. Where a person marries after making a will and the spouse survives, the surviving spouse receives a share of the estate equal in value to what they would have received had the testator died intestate — unless one of three things is true: provision was made for, or waived by, the spouse in a prenuptial or postnuptial agreement; the spouse is provided for in the will; or the will discloses an intention not to make provision for the spouse. The share is obtained under § 733.805.
Why the Pretermitted Share Is Sometimes Better Than the Elective Share
Because it is measured differently. The pretermitted share is the intestate share — potentially the entire estate where the couple had no children from other relationships, and one-half where they did. The elective share is 30 percent of the elective estate. On the right facts the pretermitted share is far larger, and it does not require the notice and election machinery of §§ 732.2135 and 732.2145.
It also fails in circumstances the elective share survives. A will executed after the marriage takes § 732.301 off the table entirely, however little it leaves you, while the elective share remains available. Working out which claim fits is genuinely the first analytical task, and it turns on a date on a document.
Does a Joint Account Go to the Surviving Spouse Automatically?
If it is held with right of survivorship, or as tenancy by the entireties, yes — it passes outside probate and the personal representative has no claim on it. That is the practical reason many surviving spouses find the probate estate almost empty while their own financial position is intact. But note the other side of the same fact: survivorship accounts and payable-on-death designations are pulled back into the elective estate under § 732.2035 even though they avoid probate. Avoiding probate and avoiding the elective share are different things, and only the first is accomplished by retitling.
Can a Prenuptial Agreement Waive All of These Rights?
Yes, and one sentence can do it. Section 732.702 permits waiver of the elective share, the intestate share, the pretermitted share, homestead, exempt property, the family allowance, community property act claims, and preference in appointment as personal representative — wholly or partly, before or after marriage — by written contract signed by the waiving party in the presence of two subscribing witnesses. A waiver of “all rights” or equivalent language waives every one of them together and renounces all benefits that would otherwise pass by intestacy or under any will executed before the waiver.
The Disclosure Rule That Decides Waiver Disputes
Section 732.702(2) treats the two documents differently. A waiver executed before the marriage requires no financial disclosure at all. A waiver executed after the marriage requires each spouse to make fair disclosure of that spouse’s estate to the other. So the same terms, signed a week before the wedding or a week after, are governed by different standards — and a postnuptial waiver signed without disclosure is vulnerable in a way a prenuptial one is not.
Two further details worth knowing. The two-witness requirement applies to agreements signed by Florida residents; an agreement executed by a nonresident is valid here if it was valid where it was executed. And § 732.702 was amended effective June 13, 2024, so an agreement assessed against an older reading of the statute deserves a fresh look.
What if There Is a Minor Child?
The homestead restriction tightens considerably. Article X, § 4(c) of the Florida Constitution permits a devise of homestead to the surviving spouse only where there is no minor child. Where a minor child survives, the homestead cannot be devised at all — not to the spouse, not to anyone. It descends under § 732.401, which means the surviving spouse takes the life estate with a vested remainder to the descendants, or elects the undivided one-half.
This surprises people who assumed a will leaving everything to a spouse would simply work. Where the decedent had a minor child from any relationship, that will could not validly devise the homestead, and the family is in the descent rules whether they planned to be or not.
My Husband Died and the Car Is in His Name. What Now?
Start with exempt property, because the answer is often better than expected. Section 732.402(2)(b) makes two motor vehicles exempt property for the surviving spouse — vehicles held in the decedent’s name, regularly used by the decedent or immediate family as personal vehicles, neither exceeding 15,000 pounds gross vehicle weight. There is no dollar cap on the vehicles, unlike the $20,000 ceiling on household furnishings.
Exempt property is not automatic, though. It has to be claimed by petition for determination of exempt property, and the right is waived if the petition is not filed within the § 732.402(6) window. Until the court has determined the property exempt and the title has been transferred, the vehicle remains an estate asset — which is why selling it first and sorting the paperwork afterwards creates problems. The transfer mechanics and the forms involved are covered in our page on transferring a vehicle after death.
Two vehicles is the statutory limit. A third vehicle, or one over the weight threshold, or one the family did not regularly use as a personal vehicle, stays in the estate and passes under the will or by intestacy like anything else.
Do You Have to Remove a Deceased Spouse From a Bank Account?
It depends entirely on how the account was titled, and the distinction matters more than the balance.
A joint account with right of survivorship, or one held as tenancy by the entireties, passes to you by operation of law. The account is yours. You will still want to notify the bank and have the decedent’s name removed — partly for practical reasons, partly because leaving a deceased person on an active account invites problems later — but no court order is required and the personal representative has no claim on it.
An account in the decedent’s sole name is a probate asset. The bank will freeze it on notice of death and will not release it to a spouse without either Letters of Administration or a summary administration order. Two narrow exceptions exist and both were expanded on July 1, 2026: under § 735.303 a financial institution may pay funds from a qualifying account directly to a family member where the total held at that institution does not exceed $2,000, and under § 735.302 a federal income tax overpayment of up to $5,000 may be refunded directly to a surviving spouse. Above those figures, some form of administration is required.
A payable-on-death designation pays the named beneficiary directly. If that is you, it is yours outside probate; if it is someone else, the account is theirs — though note that it is still pulled into the elective estate under § 732.2035. The step-by-step process for each of these is set out in closing a bank account after death.
Where the Money Actually Comes From
When a pretermitted share or an elective share has to be funded out of the probate estate, § 733.805 governs the order in which assets are used — intestate property first, then the residuary, then general devises, then specific devises. The practical consequence is that a spouse’s statutory claim tends to fall hardest on the residuary beneficiaries rather than on someone who received a specifically identified gift, which is often what drives who objects and how hard.
The Deadlines, Side by Side
| Right | What you get | Deadline | If you miss it |
|---|---|---|---|
| Homestead election, § 732.401(2) | Undivided one-half instead of a life estate | 6 months from death | You keep the life estate; the election is gone and cannot be extended |
| Exempt property, § 732.402 | $20,000 of furnishings, two vehicles, § 529 plans, § 112.1915 benefits | Later of 4 months after service of the notice of administration or 40 days after a related proceeding ends | Waived entirely |
| Elective share, § 732.2135 | 30% of the elective estate | Earlier of 6 months after service of the notice of administration or 2 years after death | The claim is lost; extension only for good cause and never past 2 years |
| Family allowance, § 732.403 | Up to $18,000 during administration | None stated | Nothing formally, but it is for maintenance during administration |
The word to notice in row three is earlier. Once a notice of administration is served on you, the six-month clock is the one that governs and the two-year outside limit stops mattering. Read anything you are served with, and note the date you received it.
What Being Served With a Notice of Administration Means
It is not junk mail, and it is not a formality. Service of the notice of administration starts the clock on your right to object to the will’s validity, to the qualifications of the personal representative, and to the venue or jurisdiction of the court — and it starts the six-month elective share period and the four-month exempt property period. If you have been served and do not know what any of it means, that is the point at which to get advice rather than after the periods have run.
The Second-Marriage Pattern
Almost every contested version of this looks the same. A remarriage later in life. Adult children from the first marriage. Over several years the house goes into a revocable trust, the brokerage account gets a transfer-on-death designation naming the children, the retirement beneficiary is changed, and the will leaves the new spouse a modest gift. On death the probate estate looks nearly empty and the adult children are appointed personal representative.
What that planning does and does not accomplish is worth being precise about. It successfully moves property outside probate. It does not defeat the elective share, because § 732.2035 reaches revocable trusts, survivorship and payable-on-death accounts, retirement benefits, and transfers made within one year of death. It does not touch the homestead restriction, which is constitutional. And it does not reach exempt property or the family allowance.
What it does accomplish is making the claim harder to collect, because the assets now sit with recipients rather than in an estate. That is what the order of contribution and the enforcement provisions exist to solve — including the surviving spouse’s independent right to sue, with fees, under § 732.2145(4).
What a Surviving Spouse Should Do in the First Month
Do not sign anything yet. Waivers of accounting, consents to distribution, family settlement agreements — all of them may be perfectly sensible, and none of them should be signed before you know what you are entitled to.
Find out whether the home was homestead, and how it was titled. Tenancy by the entireties changes the answer completely.
Note the date you were served with the notice of administration, and keep the envelope. Two of your four deadlines run from it.
Locate any prenuptial or postnuptial agreement, and check whether it was signed before or after the wedding. That single fact changes the disclosure standard.
Get the whole asset picture, not just the probate estate — trusts, survivorship accounts, beneficiary designations, retirement plans, life insurance, and any transfers in the final year. The elective estate is far wider than what the personal representative files.
Ask about the family allowance early. It is the fastest money available and, unless the will says otherwise, it does not reduce anything else you inherit. See the Florida family allowance.
Common Misunderstandings
“The will leaves me nothing, so I get nothing.” A Florida will cannot accomplish that. The elective share, homestead, exempt property and the family allowance all operate independently of what the will says.
“Everything was in a trust, so there is nothing to claim.” Revocable trust property is category 5 of the elective estate under § 732.2035.
“We were only married two years.” Florida sets no minimum duration for any of these rights.
“I have the house, so I am fine.” A life estate is not ownership. Whether to elect the one-half interest is a real decision with a six-month, irrevocable deadline.
“Exempt property is only furniture.” It also covers two vehicles with no dollar cap and all § 529 college plans.
“There is no will, so I inherit everything.” Only where there are no descendants, or where every descendant is shared and you have no others.
Talk to a Florida Probate Attorney About Your Rights as a Surviving Spouse
Three of the four protections on this page have deadlines, one of them cannot be extended under any circumstances, and one is waived outright if the petition is late. If your spouse died as a Florida resident — particularly if you have been served with a notice of administration, or the personal representative is someone other than you — the sensible step is a conversation about all four at once rather than about whichever one you happened to read about first.
Lorenzo Law represents surviving spouses in probate and probate litigation throughout Florida, including Miami-Dade and Broward County. Call 305-224-6811 or reach out through our contact page.
Related reading: the Florida elective share, assets exempt from probate, contesting a will in Florida, and filing a caveat.
This page explains Florida statutes and constitutional provisions for general informational purposes. It is not legal advice, and reading it does not create an attorney-client relationship. Citations reflect Florida law in effect as of August 2026.