Surviving Spouses' Rights

Surviving spouses are entitled to claim what the law describes as "exempt property," which consists of:

  1. Household furniture, furnishings and appliances in the decedent's usual place of abode up to a net value of $20,000
  2. Two motor vehicles owned by the decedent and regularly used by the decedent or members of the decedent's family

If there is no surviving spouse, the children of the decedent have the right to claim the exempt property.

  • FAMILY ALLOWANCE: The family allowance is available to the surviving spouse and children supported by the decedent to provide for living expenses. The maximum available is $18,000.
  • HOMESTEAD: The surviving spouse receives a life estate in the homestead the decedent owned at his or her death. At the surviving spouse's death, the property goes to the children of the decedent. This arrangement ties the surviving spouse to the homestead for life, which may not be desirable. An alternative is the surviving spouse's right to elect to take a one-half interest as tenant in common. The other one-half interest goes to the children of the decedent. This allows the surviving spouse to force a sale of the property and receive one-half of the sale proceeds.
  • CREDITORS: Exempt property, family allowance and homestead rights are available free from the claims of any creditors of the deceased spouse, unless the debt owed is secured by a lien against the specific property.
  • SHARE OF THE INTESTATE ESTATE: If the deceased spouse left no will or trust, meaning that he or she died "intestate," the surviving spouse receives the estate. Children of the deceased spouse share the estate with the surviving spouse.
  • PRETERMITTED SPOUSE: If a person marries after making a will and dies leaving a surviving spouse, the surviving spouse receives the same share of the intestate estate noted above.
  • ELECTIVE SHARE: If the deceased spouse leaves a will or trust that leaves less than his or her entire estate to a surviving spouse, the surviving spouse has options to consider. The elective share is the safety net for surviving spouses. Florida law allows a surviving spouse to choose to take 30 percent of what is known as the "augmented estate." The estate of a decedent includes all the property in his or her name alone at the time of death subject to probate proceedings or held in trust. The "augmented estate" includes those assets plus many assets passing outside probate such as joint accounts, pay on death accounts, annuities, insurance, outright gifts and other assets. This law protects a surviving spouse from a spouse who gives property away to others before death.
  • NOTICE IS REQUIRED: To receive any one of these benefits, the surviving spouse must file a notice that he or she intends to take the benefit. The election must be made within strict time frames as provided in the law. Each is different. A lawyer's advice is vital when considering these options.

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