In Florida, a surviving spouse may have the right to inherit some assets and property from their deceased spouse, regardless of what the will says.
However, it should be stressed that surviving spouses will only automatically inherit some certain property – not all. Many people make the mistake of assuming everything is inherited automatically and don’t create a will.
Florida law states that surviving spouses will automatically inherit any property titled joint with rights of survivorship or as tenants by entities. That’s because jointly owned assets do not need to pass through probate administration. Instead, the inheritance should be automatic upon the passing of the deceased spouse.
What Property and Assets Does a Surviving Spouse Inherit in Florida?
Thankfully, Florida has very friendly surviving spouse inheritance laws. Florida’s Probate Code entitles them to the following:
- Elective share of any cash and investments
- Exempt property
- Family allowance
- Homestead property
- Pretermitted spousal share of the estate
- The intestate share of the probate estate
Homestead Inheritance
Regardless of what is written in a will, a home will be inherited by a spouse automatically after the death of their spouse.
Intestate Share of an Estate
An estate is the assets, legal rights and interests of a person. After their death, what happens to the estate is usually dictated by their will. However, if the deceased spouse didn’t have a valid will then Florida’s intestate succession laws will dictate what happens.
| Family Status | Result: |
| There are no descendants other than the spouse. | Spouse inherits the entire estate. |
| The deceased spouse has descendants only with the surviving spouse. | Spouse inherits the entire estate. |
| The surviving spouse and deceased spouse have descendants.
But the deceased person also has descendants from another marriage/relationship. |
Spouse inherits half the estate. Deceased person’s descendants inherit the other half. |
| The surviving spouse has no descendants with the deceased spouse. And the deceased person has other descendants from another marriage/relationship. | Spouse inherits half the estate. Deceased person’s descendants inherit the other half. |
Elective Estate Inheritance
Florida elective share law prevents surviving spouses from being denied a share of the trust, estate or property.
This law entitles a surviving spouse to a portion of the deceased spouse’s estate, regardless of what the will says.
Surviving spouses can override the Will’s terms to receive 30% of the estate.
This law was created to help widowed women who were left financially vulnerable and previously forced to share an estate with other descendants. Now, it is commonly used to prevent surviving spouses from losing their share of hard-earned assets due to harsh wills, mistakes or poor estate planning.
Alternatively, the surviving spouse can choose to accept what is stated in their deceased spouse’s will or the elective estate.
Exempt Property Inheritance
Surviving spouses are also entitled to property from their partner’s estate, called ‘exempt property’.
Exempt property is typically those such as personal possessions, furnishings, furniture, collections and appliances – up to a net value of $20k. This is an addition to elective share inheritance.
Cars and Vehicles in a Marriage
The spouse can also inherit two vehicles that were considered their spouse’s regular vehicles. However, this may be restricted by manufacturers, size and model.
Read Related: How to Transfer a Car Title in Florida After the Owner Dies
Family Allowance
Surviving spouses can also inherit funds from the estate while probate is being completed to ensure the family can survive and remain financially sound. This is especially true for families with minor children.
In Florida, the maximum family allowance is $18k. It can be received in installments or in a lump sum. It is not automatic and must be acquired via a hearing from the probate judge.
As a surviving spouse, you are required to justify the amount needed. If you need any assistance, contact a Florida estate planning lawyer.
Pretermitted Spousal Share
If your spouse passed away shortly after marriage, but without making or updating their will to include you, then you will receive an intestate share of their estate. This is not true for scenarios where:
- There was a pre or postnuptial agreement for the spouse.
- There was a spousal waiver.
- The will clearly states an intention not to provide an inheritance to the surviving spouse.
If you, as a surviving spouse, fall under any of the above criteria (including there being no will, or an old will) then you should contact a Florida estate planning lawyer as soon as possible. Our lawyers can help determine your rights and ensure you get the share of the estate that you’re entitled to.
Florida Death Tax
Florida does not currently have a death tax, or inheritance tax. The state constitution would require a large majority of residents to vote for one, which is highly unlikely to happen as it’s one of the most appealing factors for residing in the state.
However, Federal estate taxes still apply.
Non-Probate Inheritance Laws
Some assets and property are also not subject to the probate process and, therefore, can be inherited relatively soon after the passing of a spouse. The following non-probate estate assets require beneficiaries or joint owners to be named upon the ownership and creation of the assets:
- Retirement accounts
- Payable-on-death bank accounts
- Life insurance policies
- transfer-on-death accounts
- Living Trusts
- Jointly-owned bank accounts or real estate
What to Do if Your Spouse Has Passed Away?
If your loved one has passed away, firstly, we offer our condolences for your loss.
We understand that this can be a stressful time as much as a heartbreaking one. Thinking of legal matters and estates can be painful and overwhelming.
Our Florida estate planning lawyers provide free consultations to help surviving spouses and families access their inheritance as quickly as possible. We can untangle any complex scenarios and resolve any disputes.
Contact a Florida Estate Planning Attorney
If you need any assistance with inheritance laws, inheritance rights or a dispute after your spouse has passed away, then our Florid estate planning attorneys can help.
Free Consultations
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in inheritance laws and Estate Planning & Probate since 1958. With award-winning, experienced attorneys, they can help you gain access to your inheritance as soon as possible.
Schedule a free consultation today to get started or to get any questions answered.
