Surviving Spouse Rights in Florida: What a Widow or Widower Inherits, and Every Deadline That Applies
Surviving spouse rights in Florida come in five separate parts, and they stack. The house. A package of exempt personal property. A cash allowance during administration. The right to elect 30 percent of the estate if the will leaves you too little. And — if you and your spouse ever lived in a community property state — an outright one-half ownership interest that never becomes part of the estate at all.
None of them substitutes for another, and spousal rights in Florida are not automatic in the sense most people assume. Four of the five carry deadlines, two of those cannot be extended by any ordinary petition, and several must be claimed — in writing, on time.
What Rights Does a Surviving Spouse Have in Florida?
Five. Protected homestead, exempt property, the family allowance, the elective share, and — for couples who moved here from a community property state — a claim under the Florida Uniform Disposition of Community Property Rights at Death Act.
- Protected homestead under Fla. Stat. § 732.401 and Article X, section 4 of the Florida Constitution. The family home cannot be devised away from you if you survive the owner.
- Exempt property under § 732.402 — household furnishings up to $20,000, two motor vehicles, all § 529 college plans, and all § 112.1915 benefits, free of estate creditors.
- The family allowance under § 732.403 — up to $18,000 for maintenance while the estate is administered. See the Florida family allowance.
- The elective share under § 732.201 and § 732.2065 — 30 percent of the elective estate. See the Florida elective share.
- Community property rights under §§ 732.216–732.228, if property was acquired while either spouse was domiciled in a community property jurisdiction.
These are commonly called a widow’s rights, or a surviving spouse’s inheritance rights — though Florida’s statutes are gender-neutral and a widower has identical claims. They are not the same thing as marital property in a divorce, and they are not dower. Dower and curtesy were abolished in 1974. What replaced them is the statutory scheme above, and every piece of it has its own rules.
When a Husband Dies, What Is the Wife Entitled To in Florida?
At minimum: the protected homestead, up to $20,000 of household furnishings, two vehicles, and up to $18,000 in family allowance. If there is no will, she takes the entire intestate estate unless there are children from outside the marriage — then one-half. If there is a will that leaves her less than 30 percent of the elective estate, she can elect the 30 percent instead.
Is a wife entitled to her husband’s estate in Florida? Yes — to the five protections above at minimum, and frequently to a good deal more. The same answer applies in reverse when a wife dies; Florida’s probate code is written in terms of the surviving spouse, not the widow or the widower, and a newly widowed husband has identical rights. But the question is almost always asked the first way, so here is the practical order in which a widow encounters her spousal share:
- The house. If it was homestead, it did not pass under the will. It passed under § 732.401 — and you have six months from the date of death to change how.
- The car and the furniture. Exempt property under § 732.402, claimed by petition, outside the reach of estate creditors.
- Money to live on. The family allowance, up to $18,000, awarded during administration.
- What the will or intestacy gives you — and if that is too little, the elective share.
- Everything that never entered the estate — survivorship accounts, beneficiary designations, life insurance, retirement plans, Social Security.
Does a Spouse Automatically Inherit Everything in Florida?
No. A surviving spouse inherits everything only in two situations, and only if there is no will: the decedent left no descendants at all, or every descendant is also a descendant of the surviving spouse and the surviving spouse has no other descendants. In every other configuration the spouse takes one-half or takes under the will.
The word “automatically” is where the misunderstanding lives. Some assets do pass automatically — a tenancy by the entireties, a joint account with right of survivorship, a payable-on-death designation. The probate estate does not. And if there is a will, the will controls unless the spouse exercises a right that overrides it.
Can You Disinherit Your Spouse in Florida?
Not without their written agreement. A Florida will that leaves a surviving spouse nothing does not accomplish disinheritance. The spouse elects 30 percent of the elective estate under § 732.2065, and the homestead was never devisable in the first place.
A disinherited spouse in Florida is therefore rarely disinherited in fact. What the will says and what the surviving spouse ultimately receives are two different questions, and the second one is decided by statute.
The only reliable way to limit a spouse’s rights is a valid waiver under § 732.702 — a prenuptial or postnuptial agreement, executed correctly. Everything else is an attempt that fails at the courthouse.
Does Marriage Override a Will in Florida?
Largely, yes — if the will predates the marriage. Under § 732.301, a spouse who married the testator after the will was signed takes an intestate share, as though there were no will at all, unless one of three exceptions applies.
This is the pretermitted spouse rule, and it is the single most overlooked provision in Florida probate. It is covered in full below.
The question is often asked the other way round: does a will override a spouse? It does not. A will controls what it can reach, but it cannot reach protected homestead, and it cannot defeat the elective share or the pretermitted share.
Does Florida Have Dower Rights?
No. Fla. Stat. § 732.111 provides, in its entirety: “Dower and curtesy are abolished.” They were eliminated by the 1974 Florida Probate Code.
Dower was a widow’s common-law life interest in a fraction of her husband’s real property; curtesy was the husband’s equivalent. Florida replaced both with the modern scheme — the elective share, protected homestead, the intestate share, exempt property and the family allowance. If an older deed, title commitment or out-of-state document refers to dower, it is referring to law Florida has not had for over fifty years. The practical successor is the elective share, and unlike dower it reaches far more than real estate.
Is Florida a Community Property State?
No — Florida is a separate property state. But that is not the end of the answer. If you and your spouse acquired property while living in a community property state and later moved to Florida, that property keeps its community character here, and one-half of it is already yours outright.
This is the answer almost nobody gives, and for a state that absorbs as many households from California, Texas, Arizona, Nevada, Washington, New Mexico, Idaho, Louisiana and Wisconsin as Florida does, it decides real cases. It is covered in full below, along with a written-demand deadline created in 2024 that most families have never heard of.
The House: Protected Homestead, the Life Estate, and the Six-Month Election
What Happens to the House When a Spouse Dies?
If the home was the decedent’s protected homestead and there is a surviving spouse or a minor child, the will does not control where it goes. The Florida Constitution does. The default under § 732.401(1) is that the surviving spouse takes a life estate and the decedent’s descendants take a vested remainder, per stirpes.
Article X, section 4(c) of the Florida Constitution and Fla. Stat. § 732.4015 make homestead non-devisable if the owner is survived by a spouse or a minor child — except that it may be devised to the spouse outright if there is no minor child.
A revocable trust does not get around this. Section 732.4015(2) defines “owner” to include the grantor of a trust described in § 733.707(3), and defines “devise” to include a disposition by trust of what would have been the grantor’s homestead. Florida’s appellate courts have enforced that squarely; Aronson v. Aronson (Fla. 3d DCA 2012) is the case most often cited for it.
Two further points that surprise people:
- The constitutional homestead protection is limited by area — half an acre inside a municipality, 160 acres outside one — and not by value. A waterfront house is as protected as a bungalow.
- Protected homestead is exempt from the claims of general estate creditors, and that exemption inures to the surviving spouse and heirs. The carve-outs are taxes and assessments, obligations contracted for the property’s purchase or improvement, and labor performed on the realty.
Should You Take the Life Estate or the One-Half Interest?
Section 732.401(2) gives the surviving spouse an alternative: instead of the life estate, take an undivided one-half interest as a tenant in common, with the other half vesting in the decedent’s descendants per stirpes. The window is six months from the date of death.
The deadline runs from death — not from any notice. Under § 732.401(2)(b) the election must be made within six months after the decedent’s death and during the surviving spouse’s lifetime. Under § 732.401(2)(e) it is made by filing a notice of election containing the legal description of the homestead for recording in the official records of the county where the property sits — not merely in the probate file.
The time may not be extended except in one narrow circumstance: § 732.401(2)(c) allows a petition by an attorney in fact or a guardian of the property of the surviving spouse, filed within the same six months, which extends the time at least 30 days past the order allowing the election. There is no general good-cause extension. Miss it, and the life estate is permanent.
The practical calculus: a life tenant is responsible for taxes, insurance and maintenance on a house they cannot sell or mortgage without every remainderman joining in. The remaindermen carry none of the cost and receive all of the appreciation. In a blended family, the remaindermen are frequently stepchildren the surviving spouse barely knows. The one-half tenancy in common is often the better outcome — and it is gone at six months.
Life Estate Versus One-Half Interest, Compared
| Life estate (the default) | Elected one-half interest | |
|---|---|---|
| Right to live there | Yes, for life | Shared — co-tenant with the descendants |
| Taxes, insurance, upkeep | All yours | Shared in proportion to ownership |
| Can you sell? | Only with every remainderman joining | You can sell your half, or seek partition |
| Who gets the appreciation? | The remaindermen | Half is yours |
| What passes at your death? | Nothing — the interest ends | Your half passes under your own estate plan |
| Deadline | None — it is the default | 6 months from the date of death |
What Are My Rights if My Name Is Not on the Deed but We Are Married?
Substantial — and they existed before the death, too. Article X, section 4(c) of the Florida Constitution provides that a married owner cannot alienate or mortgage homestead property without the joinder of the spouse. Your signature was required even though your name was not on the title. On death, the homestead descends to you under § 732.401 regardless of whose name is on the deed.
Two consequences worth stating plainly:
- During life: a deed or mortgage of homestead signed by only one spouse is defective. This is the spousal joinder requirement, and it is why title companies insist on both signatures even where only one name appears on the deed.
- At death: being off the deed does not disinherit you from the house. If it was protected homestead, the constitutional restriction and § 732.401 govern. If the property was held as tenancy by the entireties, it passed to you outright by survivorship and never entered probate at all.
Two related questions come up constantly at this point. A lady bird deed (an enhanced life estate deed) does not override the constitutional homestead restriction — if the owner is survived by a spouse or minor child, the same limits apply. And whichever way the homestead descends, the property receives a step-up in basis to date-of-death value, which usually means little or no capital gains tax if it is sold soon afterwards; that is a tax question worth asking before, not after, a sale.
If the property was not homestead — a rental, a second home, raw land — and your name is not on the deed, then it is an estate asset and your remedy is the intestate share, the will, or the elective share.
Can a Surviving Spouse Be Forced to Sell? Partition and the Life Estate
A life tenant generally cannot be forced out. A tenant in common can be — and can also force the sale. Partition is available between co-tenants, which is exactly what the one-half election creates.
This cuts both ways, and it is the strongest argument against the one-half election for a spouse who simply wants to stay in the home. Once you and the stepchildren are co-tenants, any of you can file a Florida partition action and ask the court to sell the property and divide the proceeds. If your priority is certainty of occupancy, the life estate protects that better. If your priority is liquidity and control of your own share, the election does.
What if There Is a Minor Child?
The restriction tightens. Homestead cannot be devised at all — not even to the surviving spouse — if the owner is survived by a minor child.
Article X, section 4(c) permits a devise to the spouse only where there is no minor child. With a minor child in the picture, the property descends under § 732.401 and the spouse’s options are the life estate or the six-month election. This is one of the most common reasons a Florida estate plan that looked fine on paper fails at the decedent’s death.
Property Taxes: The Widow’s Exemption, Homestead Exemption and Save Our Homes
You do not lose the homestead exemption or the Save Our Homes cap by surviving your spouse, and Florida gives a surviving widow or widower an additional $5,000 exemption on top.
- The widow’s or widower’s exemption. Fla. Stat. § 196.202 exempts $5,000 of assessed value for a widow or widower who is a bona fide Florida resident. It is claimed through your county property appraiser, not through the probate court. The statute does not address remarriage or divorce — but remarriage ends the status of widow or widower by definition, and a divorce finalized before the death means the survivor was never a widow at all.
- Homestead exemption and Save Our Homes. Under § 193.155, interspousal transfers and transfers by operation of law under § 732.401 are not a “change of ownership.” The assessment limitation carries over, provided the surviving spouse maintains the homestead exemption. A life tenant qualifies for the homestead exemption under § 196.031(1) as the holder of beneficial title in equity — the life estate does not cost you the exemption.
- Portability. If you later sell and buy another Florida homestead, the accumulated Save Our Homes benefit can be ported. That is a property appraiser filing, on its own schedule, and it is missed constantly.
File with the property appraiser in the county where the home sits. Miami-Dade, Broward and Palm Beach County each run their own application process.
Three of these rights expire. If your spouse died recently, the six-month homestead election and the exempt property petition are already running. A short call establishes which clocks apply to your situation.
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Exempt Property and the Family Allowance
What Is Exempt Property and How Much Is It Worth?
Section 732.402 gives the surviving spouse — or, if there is none, the decedent’s children — four categories of property free of the claims of estate creditors: household furnishings up to $20,000, two motor vehicles, all § 529 college plans, and all § 112.1915 death benefits.
| Category | Limit |
|---|---|
| Household furniture, furnishings and appliances in the decedent’s usual place of abode | Net value up to $20,000 as of the date of death |
| Motor vehicles held in the decedent’s name and regularly used by the decedent or the immediate family | Two, each under 15,000 lbs gross vehicle weight |
| Qualified tuition programs under IRC § 529, including Florida Prepaid | All of them, no cap |
| Death benefits paid under Fla. Stat. § 112.1915 | All of them, no cap |
The $20,000 figure and the 15,000-pound weight limit are current; § 732.402 was last amended in 2016 and was not touched in the 2024, 2025 or 2026 legislative sessions. Exempt property is in addition to whatever else you receive, and because it is exempt from creditors’ claims it also comes out of the calculation for summary administration under § 735.201.
How Long Do You Have to Claim Exempt Property?
The right is waived if you miss it. Under § 732.402(6), a petition for determination of exempt property must be filed by the later of four months after the date of service of the notice of administration, or 40 days after the termination of any proceeding involving the construction, admission to probate or validity of the will, or any other matter affecting the property. File late and the statute deems the right waived.
What Is the Florida Family Allowance?
Up to $18,000 in total, awarded out of the estate for the reasonable maintenance of the surviving spouse and the lineal heirs the decedent was supporting, payable while the administration runs. It is not charged against what you otherwise receive unless the will says so.
The $18,000 cap under § 732.403 is current and was not amended in 2024, 2025 or 2026. It can be paid in a lump sum or in installments, and the court has discretion over both amount and timing. For how the petition is made, what evidence of need the court expects, and how it interacts with creditors’ claims, see the Florida family allowance.
My Husband Died and the Car Is in His Name. What Now?
Start with exempt property — the answer is usually better than expected. Section 732.402(2)(b) covers two vehicles regularly used by the decedent or the family, each under 15,000 pounds, and they come to you free of estate creditors.
Note what Florida does not have: there is no transfer-on-death or beneficiary designation available on a Florida vehicle title. Chapters 319.22 and 319.28 contain no such mechanism, whatever the practice may be in the state you moved from. The route is the exempt property petition or the ordinary title transfer procedure. See transferring a vehicle after death.
What Does a Surviving Spouse Inherit if There Is No Will?
When your spouse dies without a will in Florida — what lawyers call dying intestate — the estate passes under the statute rather than under any document, and what the surviving spouse takes depends entirely on whose children exist.
Under Fla. Stat. § 732.102 there are four scenarios. In two of them the surviving spouse takes the entire intestate estate. In the other two the spouse takes one-half. Which one applies turns entirely on whose children exist.
| Family situation | Spouse’s intestate share |
|---|---|
| No surviving descendant of the decedent | The entire intestate estate |
| All of the decedent’s descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendant | The entire intestate estate |
| One or more of the decedent’s descendants are not descendants of the surviving spouse | One-half |
| All of the decedent’s descendants are also the surviving spouse’s, but the surviving spouse has one or more descendants who are not the decedent’s | One-half |
The intestate estate itself is defined by § 732.101, and § 732.103 governs what happens to any part not passing to the spouse. This is Florida’s statute of descent and distribution, and it applies only to probate assets — not to non-probate assets that pass by survivorship or beneficiary designation.
Who Has More Rights, the Spouse or the Children, in Florida?
The spouse, in almost every respect — except the house, where minor children outrank everyone.
The spouse has the elective share; children do not. The spouse has the family allowance and exempt property ahead of the children. The spouse has first preference to serve as personal representative in an intestate estate. But homestead cannot be devised at all where there is a minor child, and adult descendants take the vested remainder in the homestead ahead of the spouse’s ability to sell it. Stepchildren, meanwhile, inherit nothing from a stepparent by intestacy — a fact that drives a great deal of blended-family litigation.
The Elective Share and the Pretermitted Share
The elective share is 30 percent of the elective estate under § 732.2065. The elective estate is far larger than the probate estate. The election must be filed by the earlier of six months after service of the notice of administration on you, or two years after the date of death.
Section 732.201 creates the right; § 732.2065 sets the percentage. Section 732.2035 defines the elective estate across ten categories, and it reaches well past probate: the probate estate itself, protected homestead, payable-on-death and transfer-on-death and survivorship accounts, joint tenancy and tenancy by the entireties interests, property over which the decedent held a revocable power, property in which the decedent retained a right to income or use, the net cash surrender value of life insurance on the decedent’s life, pension and retirement and deferred compensation benefits, certain transfers within one year of death, and property transferred in satisfaction of the elective share.
Two details worth knowing: benefits under the federal Railroad Retirement Act and the Social Security system are expressly excluded from the elective estate, and § 732.2045 carries further exclusions. Valuation runs through § 732.2055 and the sources from which the share is paid through § 732.2075. An estate that looks empty on the probate side can still owe a substantial elective share. For the full calculation see the Florida elective share.
What if the Will Was Signed Before the Marriage?
You are a pretermitted spouse. Under § 732.301 you take a share equal in value to the intestate share — unless provision was made for or waived by you in a prenuptial or postnuptial agreement, you are provided for in the will, or the will discloses an intention not to provide for you.
One wrinkle: a codicil executed after the marriage can republish the will as of the codicil’s date, which may defeat the pretermitted claim. Check the date of every testamentary instrument, not just the will.
Note the third exception carefully. A will that says nothing about a future spouse does not disclose an intention not to provide for one. A will that expressly says “I intend to make no provision for any person I may later marry” does. The difference decides cases.
Florida has a parallel rule for children born or adopted after the will was executed — § 732.302, the pretermitted child statute — which matters in blended families where the will predates a later child.
Why the Pretermitted Share Is Sometimes Better Than the Elective Share
Because the two are measured against different things. The pretermitted share is the intestate share — potentially 100 percent of the probate estate. The elective share is 30 percent of the elective estate.
Where the decedent’s wealth sat in probate assets and there are no children from outside the marriage, the pretermitted share can be more than three times the elective share. Where the wealth sat in revocable trusts, survivorship accounts and beneficiary designations, the elective share reaches assets the pretermitted share never touches. They are alternatives, and the analysis is arithmetic, not sentiment.
What Happens if Everything Is in a Revocable Trust?
A revocable trust defeats neither your homestead rights nor your elective share. Section 732.2035(5) pulls property over which the decedent held a revocable power straight into the elective estate. Section 732.4015(2) and § 736.1109 preserve homestead protection against a trust disposition.
This is the most common structure a surviving spouse encounters in a second marriage: a revocable living trust funded with everything, naming the children of the first marriage, with the spouse told there is “nothing in the estate.” There is. The elective estate is a different measurement, and it was designed for exactly this.
Florida also permits the elective share to be satisfied in trust. An elective share trust under § 732.2025(2) must give the surviving spouse the income or use of the property for life, the right to require unproductive property be made productive, and no distributions to anyone else during the spouse’s lifetime. Section 732.2095 then values that interest on a sliding scale:
- 100 percent where the spouse has both a right to invade principal and a power of appointment;
- 80 percent where the spouse has the right to invade principal but no power of appointment;
- 50 percent where the spouse has neither.
A trustee who offers a life income interest and calls it satisfaction of the elective share may be offering you fifty cents on the dollar — which is why a surviving spouse facing a funded trust should have their own lawyer read it. If a trustee is resisting, that is a trust litigation question.
One citation note for anyone researching this: Friedberg v. SunBank (1994) is often quoted for the proposition that a revocable trust escapes the elective share. It construed pre-1999 law and does not state current Florida law. Section 732.2035 expressly includes revocable transfers.
Can You Change Your Mind After Electing?
For the elective share, yes — within limits. Under § 732.2135(3) the surviving spouse may withdraw the election within eight months after the decedent’s death and before the court’s order of contribution. For the homestead election under § 732.401(2), no — it is a one-way door.
Two further mechanics under § 732.2135 that are worth knowing before a deadline arrives:
- Extension. A petition for extension may be filed within the § 732.2135(1) period, or within 40 days after the termination of any proceeding affecting the amount payable under § 732.2075(1), whichever is later — but never more than two years after the death. The standard is simply good cause shown.
- Tolling. Under § 732.2135(4), a petition for an extension of time, or for approval to make the election, tolls the time for making the election.
The Florida Community Property Act — and the Deadline Almost Nobody Warns You About
If you and your spouse acquired property while either of you was domiciled in a community property state, one-half of that property is already yours outright. It is not part of the probate estate and it cannot be given away by will. But since 13 June 2024 there is a written-demand deadline, a two-year statute of repose, and an express statement that the personal representative has no duty to go looking for it.
The Florida Uniform Disposition of Community Property Rights at Death Act, Fla. Stat. §§ 732.216–732.228, is in force and was substantially revised in 2024. It matters to an enormous number of Florida households and is almost never discussed.
Which Couples Does This Apply To?
Couples who acquired property while living in a community property jurisdiction and later established Florida domicile. In practice that means anyone who spent working years in California, Texas, Arizona, Nevada, Washington, New Mexico, Idaho, Louisiana or Wisconsin — and, in some circumstances, Puerto Rico or a foreign community property regime — and then retired to Florida.
The Act reaches personal property wherever located and Florida real property that is traceable to community property acquired elsewhere. Traceability is the whole game: the California salary that bought the Naples condo, the Texas brokerage account rolled into a Florida one.
Two rebuttable presumptions under § 732.218 — revised effective 13 June 2024 — do the sorting:
- Property acquired during the marriage while domiciled in a community property jurisdiction is presumed to be property the Act applies to.
- Property acquired while domiciled in a non-community property jurisdiction and titled in a form creating rights of survivorship is presumed not to be.
Where the Act applies, the consequences are unusual and strongly favourable to the survivor:
- The surviving spouse’s one-half is owned outright. It is not in the probate estate and is not subject to testamentary disposition by the decedent.
- The decedent’s one-half is part of the probate estate — but it is excluded from the elective estate under § 732.2045(f). You do not get to count it twice, and you should not let anyone count it against you.
- Section 732.222 protects good-faith purchasers and lenders, which is why acting early matters more than being right eventually.
The Six-Month Written Demand and the Two-Year Bar — § 732.2211
This is a new deadline and it is unforgiving. Fla. Stat. § 732.2211, added by Laws 2024, chapter 2024-238 and effective 13 June 2024, creates a statute of repose for community property claims:
- A surviving spouse or beneficiary must make a written demand within six months after service of the notice of administration. A creditor generally has three months from first publication of the notice to creditors.
- An action for declaratory relief about the property must be filed within two years of the decedent’s death, or it is forever barred.
- Rights not timely asserted are forfeited, and the personal representative may distribute the estate with no liability for them.
- It is not a “claim” under § 731.201 and is not governed by §§ 733.701–733.710 — so none of the ordinary creditor-claim machinery rescues a late assertion.
And under § 733.212(2)(g), amended the same day, the notice of administration must now state that the personal representative has no duty to discover whether property held by the decedent or the surviving spouse is community property unless that written demand is made.
Read that last point again. The estate is now expressly told it need not look. If you do not raise it, nobody will raise it for you. The same 2024 act revised § 732.219 (disposition on death and the waiver mechanism) and repealed § 732.221, the former provision on disposition upon divorce.
Accounts, Beneficiaries and Non-Probate Assets
Does a Joint Account Go to the Surviving Spouse Automatically?
If it is held with right of survivorship, or as a tenancy by the entireties, yes — it passes outside probate the moment of death. If it is a convenience account, or held as tenants in common, or the survivorship language is absent, it does not.
Florida law supplies a presumption of survivorship for many multiple-party accounts, but the signature card controls more than most people expect, and banks routinely mislabel accounts. A payable-on-death or transfer-on-death designation likewise passes outside probate to the named beneficiary. None of this puts the asset beyond the elective estate: § 732.2035 reaches survivorship accounts, POD and TOD accounts, and joint tenancies. See the Florida right of survivorship and assets exempt from probate.
Do You Have to Remove a Deceased Spouse From a Bank Account?
It depends entirely on how the account was titled. Entireties and survivorship accounts need a death certificate and a signature card update. An account in the decedent’s sole name needs letters of administration — the bank cannot release it to you on a marriage certificate.
See closing a bank account after death for the documents each institution actually asks for.
Retirement Accounts, Life Insurance and ERISA
An IRA, 401(k), pension or annuity passes to the named beneficiary by contract, not by will. But federal law gives a spouse rights in most employer plans that Florida law does not need to supply, and Florida law pulls the value back into the elective estate anyway.
- ERISA-governed plans — most private employer 401(k) and pension plans — generally require the participant’s spouse to be the beneficiary unless the spouse consented in writing to someone else. A designation naming a child or a prior spouse without that spousal consent is frequently invalid.
- IRAs are not ERISA plans and carry no such consent requirement. A spouse can be, and often is, designated away from an IRA entirely.
- The elective estate reaches both. Section 732.2035(8) includes amounts payable by reason of surviving the decedent under any public or private pension, retirement or deferred compensation plan — excluding Railroad Retirement and Social Security — and § 732.2035(7) includes the net cash surrender value of life insurance on the decedent’s life.
See beneficiary designations and retirement plans and beneficiary designations in Florida estate planning.
Social Security and Other Benefits That Are Not Part of the Estate
Survivor benefits are federal, they are not probate assets, and they are not counted in the elective estate. They are also the money most widows actually need first.
- Social Security survivor benefits. A surviving spouse may be eligible for a widow’s or widower’s benefit, generally from age 60 (50 if disabled), or at any age while caring for the decedent’s child under 16. Contact the Social Security Administration directly; benefits are not paid automatically and generally are not retroactive to the date of death.
- The lump-sum death payment. A one-time $255 payment to an eligible surviving spouse. It must be claimed, ordinarily within two years of the death.
- VA benefits. A surviving spouse of a veteran may qualify for Dependency and Indemnity Compensation or a survivors pension, and for burial benefits.
- Unclaimed property. Accounts the decedent forgot escheat to the state. Florida’s unclaimed property division is worth a search. See unclaimed property in Florida.
Who Counts as a Spouse?
Common-Law Marriage
Florida has not recognised new common-law marriages since 1 January 1968. But a common-law marriage validly created in a state that permits them is recognised here, and it carries full surviving spouse rights.
Section 741.211 abolished common-law marriage prospectively. It says nothing about out-of-state marriages, but Florida courts apply the ordinary rule that a marriage valid where created is valid here — Compagnoni v. Compagnoni (1991), American Airlines v. Mejia (2000) and Johnson v. Lincoln Square (1990) are the decisions usually cited. The test is whether the marriage was valid under the law of the state where it was formed.
Separated, Estranged, or in the Middle of a Divorce
You are still the surviving spouse. Nothing in Chapter 732 terminates spousal rights for separation, abandonment, or a dissolution proceeding that has not reached final judgment. Only a final judgment of dissolution ends the status.
Florida has no legal separation and no abandonment forfeiture. A spouse who left years ago, who was estranged, or who had a divorce pending on the date of death still takes the elective share, the homestead and everything else — In re Estate of Salathe (1997) is the case usually cited. Once a final judgment of dissolution is entered, § 732.507(2) voids the will provisions in favour of the former spouse and § 736.1105 does the same for revocable trust provisions, both for decedents dying on or after 29 June 2021.
Can Someone Who Caused the Death Inherit? The Slayer Statute
No. Under Fla. Stat. § 732.802, a person who unlawfully and intentionally kills the decedent takes nothing — and the probate court can make that finding by the greater weight of the evidence, without any criminal conviction.
The statute is broader than most people expect:
- § 732.802(2) severs joint tenancies and tenancies by the entirety, so the victim’s share passes through the estate rather than by survivorship.
- § 732.802(3) voids the killer’s rights under life insurance, bonds and other contractual beneficiary designations; the proceeds pass as though the killer had predeceased.
- § 732.802(4) reaches the homestead life estate.
- § 732.802(5) makes a conviction of murder conclusive, but in its absence lets the court decide by the greater weight of the evidence.
Separately, and on a much smaller scale, § 497.005(43) disqualifies a surviving spouse from controlling the disposition of remains if arrested for domestic violence against the decedent or for an act contributing to the death.
Prenuptial and Postnuptial Waivers
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 of an intestate estate — wholly or partly, before or after marriage.
The agreement may be called a prenuptial, antenuptial or postnuptial agreement, or simply a marital agreement; § 732.702 looks at when it was signed and what it says, not what it is titled.
A waiver of “all rights”, or equivalent language, in the property or estate of a present or prospective spouse waives every one of them together, and operates as a renunciation of all benefits that would otherwise pass by intestate succession or under any will executed before the waiver. A complete property settlement entered into after, or in anticipation of, separation or dissolution does the same.
The Disclosure Rule That Decides Waiver Disputes
Section 732.702(2) treats the two documents differently, and the rule runs opposite to most people’s intuition. A waiver executed before the marriage requires no financial disclosure at all. A waiver executed after the marriage requires fair disclosure of the waiving party’s estate.
This is stated backwards more often than it is stated correctly, including in a good deal of published material. It matters enormously: the postnuptial agreement signed at the kitchen table, without schedules of assets, is far more vulnerable than the prenuptial agreement signed the week before the wedding. If the agreement you were handed came after the wedding and nobody showed you what they owned, that is the point of attack.
The Two-Witness Rule That Can Void a Waiver Signed After June 2024
New requirement, effective 13 June 2024. Laws 2024, chapter 2024-238 amended § 732.702(1) to require that the waiver be signed by the waiving party in the presence of two subscribing witnesses.
The scope is narrow and precise, so read it carefully:
- The witness requirement applies only to agreements signed by Florida residents after 13 June 2024.
- Waivers signed by Florida residents before that date are not subject to it and remain valid without witnesses if they complied with prior law.
- A waiver executed by a non-resident of Florida, before or after that date, is valid here if it was valid where it was executed — whether or not the person was a Florida resident at death.
If a postnuptial agreement was signed in Florida after June 2024 with only a notary and no two subscribing witnesses, its validity is a live question.
Can a Surviving Spouse Be the Personal Representative?
In an intestate estate, the surviving spouse has first preference under Fla. Stat. § 733.301. In a testate estate, the person nominated in the will controls — the spouse has no statutory first claim.
Florida calls this role the personal representative; most other states call it the executor. So if you are asking who becomes executor when there is no will, the Florida answer is the surviving spouse.
The order of preference:
- Intestate: the surviving spouse; then the person selected by a majority in interest of the heirs; then the heir nearest in degree.
- Testate: the personal representative nominated in the will or by a power conferred in it; then the person selected by a majority in interest of the beneficiaries; then a devisee under the will.
This is worth real money and real control — the personal representative directs the administration, retains counsel and decides what gets sold. Note that the preference itself is on the list of rights waivable under § 732.702, so a prenuptial agreement can strip it. See how to become personal representative in Florida.
Every Deadline, Side by Side
| Right | What you get | Deadline | If you miss it |
|---|---|---|---|
| Homestead election § 732.401(2) |
Undivided one-half as tenant in common, instead of a life estate | 6 months from the date of death, during your lifetime; recorded notice of election | The life estate is permanent. Extension only on an attorney-in-fact or guardian petition under § 732.401(2)(c). |
| Exempt property § 732.402(6) |
$20,000 furnishings, two vehicles, § 529 plans, § 112.1915 benefits | Later of 4 months after service of the notice of administration, or 40 days after termination of related proceedings | The right is deemed waived. |
| 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 for good cause only, never past 2 years. |
| Community property demand § 732.2211 |
Your outright one-half of community property | Written demand within 6 months of service of the notice of administration; declaratory action within 2 years of death | Rights forfeited. The personal representative may distribute free of liability, and has no duty to look for it. |
| Family allowance § 732.403 |
Up to $18,000 during administration | None stated — but it is paid during administration, so ask early | Nothing to award once the estate closes. |
| Withdrawing an election § 732.2135(3) |
Undo the elective share election | Within 8 months of death and before the order of contribution | The election stands. |
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 three of the clocks above at once, and since June 2024 it also carries a warning that the estate will not look for your community property unless you demand it.
Under § 733.212, the notice states the court, the file number, the personal representative, the attorney, and the deadlines for objecting to the will’s validity, the qualification of the personal representative, and the venue or jurisdiction of the court. As of the 2024 amendment it must also state that the personal representative has no duty to discover community property absent a written demand under § 732.2211.
The date on the certificate of service is the date that matters. Diary it the day it arrives.
The Second-Marriage and Blended-Family Pattern
Almost every contested version of this looks the same. A remarriage later in life. Adult children from a first marriage. A revocable trust or a will drawn before the wedding. A home in one spouse’s name. And a surviving spouse told, politely, that there is nothing for her.
What the law actually supplies against that fact pattern:
- The will predates the marriage, so the pretermitted spouse rule under § 732.301 may give the survivor an intestate share outright.
- The trust does not defeat the elective share — § 732.2035(5) reaches it — or the homestead, under § 732.4015(2) and § 736.1109.
- The home was protected homestead and could not be devised to the children if a spouse survived.
- Stepchildren inherit nothing from a stepparent by intestacy, which frequently reframes the whole negotiation.
- If the couple came from a community property state, the survivor may already own half of the assets in dispute.
Where the will or trust itself looks suspect, the separate questions are contesting a will in Florida, undue influence, and filing a caveat to receive notice before anything is admitted.
What a Surviving Spouse Should Do in the First 30 Days
Do not sign anything yet. Waivers of accounting, consents to distribution and family settlement agreements are routinely presented to surviving spouses in the first weeks, and they are enforceable.
- Order certified death certificates. More than you think you need — most institutions want their own certified copy. Florida issues them with and without cause of death; most custodians accept the version without.
- Diary the date of death. The homestead election runs from that date, not from any notice. Put the six-month date on a calendar today.
- Do not sign waivers, consents or settlement agreements. Not until someone has told you what you are giving up.
- Find the deed. Whose name is on it, was it homestead, was it held as tenancy by the entireties. This determines more than the will does.
- Locate the will and any trust. Note the execution date and compare it to the date of the marriage — that one comparison decides whether you are a pretermitted spouse.
- List where you lived during the marriage. If any of it was a community property state, say so to your attorney in the first meeting. The § 732.2211 demand runs from service of the notice of administration.
- Inventory the accounts and how they are titled. Survivorship, entireties, POD, TOD, sole name. Request date-of-death balances in writing.
- Contact each retirement plan and insurer and ask for the beneficiary of record and whether spousal consent is in the file.
- Apply for Social Security survivor benefits and any VA benefits. They are not automatic and generally are not retroactive.
- File with the county property appraiser for the widow’s exemption and to confirm the homestead exemption continues in your name.
- Watch for the notice of administration. When it arrives, note the date on the certificate of service — three deadlines start there.
- Speak with a probate lawyer before month two. Two of the deadlines above cannot be rescued by any ordinary petition. The right lawyer for surviving spouse rights is one who handles contested probate, not only estate planning — the two are different practices.
Common Misunderstandings About Spousal Rights in Florida
- “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 over the top of it.
- “Everything is in a trust, so there is no estate.”
- The elective estate is a different measurement from the probate estate, and § 732.2035(5) reaches revocable trust property directly.
- “We were separated, so I have no claim.”
- Only a final judgment of dissolution ends spousal status. Separation and abandonment do not.
- “Florida has dower, like my mother had.”
- Abolished in 1974 by § 732.111. The elective share replaced it, and reaches far more than real estate.
- “My name isn’t on the deed, so the house isn’t mine.”
- If it was homestead, your joinder was required to convey it during life and it descends to you at death regardless of the title.
- “Florida isn’t a community property state, so that doesn’t apply to us.”
- True as to property acquired here. Not true as to property acquired while you were domiciled in California, Texas, Arizona, Nevada, Washington, New Mexico, Idaho, Louisiana or Wisconsin.
- “The lawyer for the estate is looking out for me.”
- The estate’s attorney represents the personal representative. And since June 2024 the notice of administration says in terms that the personal representative has no duty to discover your community property.
- “I have plenty of time.”
- Six months from the date of death for the homestead election, and it cannot be extended by an ordinary petition.
Which of Your Deadlines Are Already Running
Four of the five protections on this page carry deadlines. One of them — the homestead election — cannot be extended except by a petition from an attorney in fact or a guardian of the property. Another — the community property demand under § 732.2211 — is under two years old, and the estate is expressly relieved of any duty to raise it for you.
A Florida probate lawyer who regularly represents surviving spouses can tell you which clocks are already running, what the estate is likely to be worth on the elective side rather than the probate side, and whether the waiver you were asked to sign is enforceable.
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Lorenzo Law represents surviving spouses in probate and estate litigation throughout Florida, including Miami-Dade, Broward County and Fort Lauderdale and Palm Beach County, and in Orlando, Tampa, Jacksonville and Sarasota. Hablamos español — abogado de herencias en Florida.
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.