Probate: What Are the Rights of a Surviving Spouse?
In the State of Florida, a surviving spouse often has many more rights in the estate of her deceased spouse’s estate than she thinks. Of course, if a surviving spouse is provided for by the deceased spouse’s estate that beneficial interest will not be reduced. However, sometimes a surviving spouse finds that she has not been provided for by the deceased spouse. Florida law protects a surviving spouse should she be either intentionally or unintentionally left out of her spouse’s Will or other testamentary documents (disinherited). This guide is meant to be a quick reference for the individual who has finished mourning the loss of a spouse only to be faced with the threat of losing the house, personal property, and financial assets! Of course, the law is a complicated matter and we suggest you contact a competent attorney to discuss your situation right away as the longer you wait the more limited your options may become. We here at the Preston Law Firm are ready to listen to you free of charge and consult with you about how we can assist you through this difficult time.
Pretermitted Spouse – Unintentionally “Disinherited”
What is a pretermitted spouse? When an individual (1) makes a Will or other testamentary document, then (2) gets married, and then (3) dies before making a new Will, then the individual’s spouse is often considered to be “pretermitted.” This is the most common way for a spouse to be unintentionally disinherited.
If this is the case, fear not. Florida law states that a pretermitted spouse is entitled to that portion of the decedent’s estate which the surviving spouse would have received if the testator had died intestate – Florida Statutes Chapter 732.301.
In such a case, the probate of the estate is handled as normal; however, the surviving spouse is treated and has the same rights as any other beneficiary. There are some restrictions to this beneficial interest and it is always in your best interest to speak to an experienced probate attorney.
If the deceased spouse created a Will or other testamentary documents after getting married and failed to adequately provide for the surviving spouse, the surviving spouse is not considered to be “pretermitted.” However, this still does not mean that the surviving spouse is without recourse! The surviving spouse may still have rights in or to the following:
Homestead – The Florida Constitution (Article X, Section 4) provides significant protection for a surviving spouse with regard to the homestead. Even if purposefully disinherited, a surviving spouse is entitled to AT LEAST a life estate in the homestead – meaning the surviving spouse would have the right to remain in the property for the remainder of her life.
Elective Share – Florida Statutes Chapters 732.201-228 provide that a disinherited spouse has the right to claim thirty percent (30%) of the deceased spouse’s estate. This includes bank accounts that were designated with a Pay-on-Death (POD) beneficiary, retirement accounts (e.x. 401k’s and IRA’s) that named a beneficiary, regular bank accounts, gifts that were given up to one (1) year prior to the decedent’s death, and MANY other assets. However, the surviving spouse has only a limited time to elect to receive the elective share – so, act quickly!
Exempt Property – Florida Statutes Chapter 732.402 provides a surviving spouse with the option to claim specific property of the deceased spouse – including, but not limited to, (1) household furniture, furnishings, and appliances worth up to $20,000, (2) two motor vehicles, and (3) 529 qualified tuition programs. Exempt property is excluded from the Elective Share calculations and as such do NOT offset or count against the Elective Share amount.
Family Allowance – Florida Statutes Chapter 732.403 provides a surviving spouse with a “family allowance” of up to $18,000 from the decedent’s estate on which to live. The amount of assets available to the surviving spouse (net worth) does NOT matter when the Court is determining the family allowance amount. This amount does NOT offset or count against the Elective Share amount.
Even if the surviving spouse was provided for, these rights are still available to the surviving spouse. Meaning, if the deceased spouse leaves the surviving spouse less than what she would be entitled to under the Elective Share, then the surviving spouse may still elect to take the Elective Share amount effectively bringing her total beneficial interest up to the Elective Share amount as discussed above.
WAIVER – Pre-nup/Post-nup
It is important to note that Florida Law DOES allow for an individual to waive any or all of the rights discussed above. If you’ve entered into a marital agreement (prenuptial or post-nuptial), you might not be eligible to claim the rights listed above. If this is the case, bring your marital agreement to an experienced attorney immediately to have it reviewed.
As you can see, you likely have many more rights that you initially thought. Contact an experienced probate attorney to discuss your options, and remember that your options may become limited the longer you wait to seek assistance. The Preston Law Firm has been assisting Volusia and other surrounding counties with their probate needs for more than 30 years. We are a law firm you can trust. CLICK HERE today to schedule a free consultation and find out your options!