Top 5 Rights Of A Surviving Spouse In Florida: Surviving spouses have many rights under Florida probate law. Five of the most important rights are as follows:
Elective Share /Election Against Will: Under Florida probate law, a spouse has a right to a 30% elective share of the deceased spouse's estate valued as of the date of death. The value of the elective share is satisfied first from assets that have already passed to the surviving spouse, next from the deceased spouse's Florida probate estate, and finally from the elective estate. The elective estate is defined by Florida Statute 732.2035 and includes: Probate estate, pay on death (POD), transfer on death and similar accounts; jointly owned accounts or securities based on the amount the decedent could withdraw, jointly owned real estate, of tenants by the entirety property, certain revocable transfers, including revocable living trusts, retained life estates and income interests, most retirement benefits, cash value of life insurance immediately prior to the death of the decedent, most gifts one year prior to death, and property transferred in satisfaction of the elective share prior to death.
Important Point - There are very short time frames within which to claim elective share. If the deadline is missed, the right to the elective share could be lost.
Family Allowance: A spouse of a Florida decedent is entitled to a Family Allowance of up to $18,000 payable in lump sum or installments pursuant to Florida Statute section 732.403. The purpose of the family allowance is to provide support for the decedent's spouse and lineal heirs that the decedent was supporting. If the living spouse has significant assets or income, the family allowance awarded could be less than the full $18,000.
Homestead Rights: Article X Section 4(c) of the Florida Constitution limits who can receive Florida Homestead property upon the death of an owner if he or she is survived by a spouse or a minor child. The widow / widower is entitled to no less than a life estate in any property used as a homestead by the surviving spouse in Florida. Under a recent change in the law, the surviving spouse can elect to receive a one-half tenant in common interest instead of the life estate. If the homestead was titled jointly between the deceased and the spouse, the living spouse automatically becomes the owner of the homestead property without the need for court proceedings.
Intestate Share: If a spouse dies without a will, he or she has died intestate. The widow / widower receives an intestate share of the spouse's estate. If the only survivor is a surviving spouse, or if all the lineal descendants are also lineal descendants of the surviving spouse and the decedent, then the surviving spouse receives the entire estate of the decedent. If there are descendants of the decedent who are not also of the surviving spouse, or if there are descendants of the deceased, but the surviving spouse has descendants not also from the decedent, then the surviving spouse receives one-half of the intestate estate.
Exempt Property: The surviving spouse of a decedent domiciled in Florida at the time of death is entitled to certain items of tangible personal property including household furniture and appliances up to $20,000 as of the date of death, two personal automobiles held in the decedent's name and regularly used by the decedent or members of the decedent's immediate family as personal automobiles under 15,000 pounds. Exempt property is in addition to elective share and other spousal entitlements.
The probate lawyers of Clark Skatoff are available to discuss your issues, at (561) 842-4868.