Rights for Surviving Spouses
Surviving Spouse Rights During Probate in Florida
In Florida, a surviving spouse has the rights to the deceased’s spouse’s property regardless of whether or not there is a valid will for the deceased saying so. Succession laws vary by state so if you need to determine what happens to property when someone dies without a valid will in another state, we recommend you speak with a probate lawyer about the specific details of your situation.
Does a Spouse Automatically Inherit Everything in Florida?
No, Florida law provides the right for a surviving spouse to receive some (not necessarily all) of a decedent’s property. In Florida, surviving spouses will automatically inherit any property titled jointly with the rights of survivorship or as tenants by entries (see below). These assets are not subject to Florida probate law.
Florida Surviving Spouse’s Rights: Intestate Share
When a spouse (also known as the decedent) dies without a will or made a will prior to the marriage that does not provide for the surviving spouse, the surviving spouse’s share is defined under Florida law.
Fla. Stat. § 732.102 states that the intestate share of the surviving spouse is:
- If there is no surviving descendant of the decedent, the entire intestate estate.
- If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
- If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
- If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
This share is commonly referred to as the intestate share. Fla. Stat. § 732.102.
How Does Intestate Succession Work in Florida?
If there are no children when a spouse dies in Florida, the spouse gets everything. If there are living descendants like children, but no spouse, the children will inherit everything. Determining who gets what in Florida can be complex, which is why it is wise to work with a Palm Beach County estate planning attorney to ensure those you wish to inherit your wealth upon your death, in fact do.
Florida Surviving Spouse’s Rights: Tenant-In-Common Election
What is a Tenant-In-Common Election?
In 2010, Florida law enabled a surviving spouse the ability to file a tenant-in-common (“TIC”) election. Fla. Stat. § 732.401(2) states:
In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.
This TIC election—in other words—allows a surviving spouse to choose between an ownership interest in the decedent’s homestead, as an alternative to the life estate possessory interest previously afforded under Florida law.
Who May Exercise the Right of Election?
The right of election may be exercised by (1) the surviving spouse or (2) the surviving spouse’s attorney in fact or guardian of the property, provided the attorney in fact or property guardian has court approval. Fla. Stat. § 732.401(2)(a).
Florida Surviving Spouse TIC Election Deadlines
The TIC election must be made within 6 months of the decedent’s and during the surviving spouse’s lifetime.
If the petition is timely filed (i.e. recorded, as discussed below) the surviving spouse’s attorney in fact or property guardian “the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.” Fla. Stat. § 732.401(2)(c).
Can the TIC election be revoked?
No. Once a TIC election is made it is irrevocable.
How is the TIC election made?
A TIC election is made by filing a notice of election containing the homestead’s legal description for recording in the official record books of the county or counties where the homestead property is located. Fla. Stat. § 732.401(2)(e) provides a template form. We can also help you prepare this form for recordation.
Florida Surviving Spouse’s Rights: Pretermitted Spouse
What is a pretermitted spouse?
A pretermitted spouse is a surviving spouse who married the decedent after the decedent executed his or her will. The pretermitted spouse is entitled to receive the share they would have received had the decedent died intestate (without a will).
Fla. Stat. § 732.301 states that “[w]hen a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate.” There are exceptions, however, to Florida’s pretermitted spouse statute. Fla. Stat. § 732.301 applies to every surviving spouse of a decedent who executed the will before the marriage, unless:
- Provision has been made for or waived by the spouse by 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 surviving spouse is entitled to obtain his or her share pursuant to Florida’s abatement statute. Fla. Stat. § 733.805.
The Probate Lawyers at Comiter, Singer, Baseman & Braun Can Help Answer Your Questions
Our attorneys have successfully handled a litany of spousal right disputes in probate proceedings on behalf of their clients. For a free consultation, please call us at (561) 626-2101 or contact us online.