Can My Spouse Leave Me With Nothing In His/Her Will Under Florida Law?

by Kellen Bryant

Well, you have come to the right place for help if you live in Florida.  Fortunately, the Florida Constitution and Statutes provide a few strong protections for a surviving spouse, which should be another reason to retire in Florida.  Florida law will give you a place to live and money to support yourself as long as you do not sign a prenuptial or postnuptial agreement waiving those rights.  This post should be helpful for a widow or widower who recently lost their spouse that lived in Florida, and there are no minors involved.

1) Florida Homestead - The Florida Constitution provides homestead protection, which comes in many shapes and sizes.  You all are probably familiar with the homestead property tax exemption.  Homestead also protects the surviving spouse when a person has his or her shared martial residence in their name only, excluding the surviving spouse’s name from the title or deed.  In that case, the spouse holding sole title to the martial home cannot devise the house to anyone except the surviving spouse.  See Section  732.4015, Florida Statutes (2009).   So, if your spouse just passed away without minor children while living and owning Florida real estate in his or her sole name, then the surviving spouse is entitled to the property regardless if the will says someone else gets the house.

2)  Florida Elective Share or Pretermitted Spouse Share - In Florida, the legislature does not like it if you give your husband or wife nothing through your will or trust.  Consequently, Florida allows the surviving spouse to take an “elective share” that amounts to 30% of the elective estate. Section 732.2065, Florida Statutes (2009).  The property that makes up the elective estate is not the same as the property in the probate estate.  The elective estate encompasses a larger portion of the decedent’s wealth during their lifetime, including pay on death bank accounts, property held in most trusts, retirement accounts, and certain gifts.  If the surviving spouse is given very little property, then the ability to take the elective estate would be a great alternative.  The surviving spouse can take property and gifts that the decedent left to others to satisfy the elective share – this will likely cause problems with the rest of the family, especially any adult children.

A “pretermitted spouse” means that a person made a will, got married to X, and then died without amending the will to include X.  In that case, the surviving spouse would be entitled to an intestate share of the estate.  There are exceptions to the determination of being a pretermitted spouse such as prenuptial agreement or clear intention not to provide for the spouse in the will before the marriage.  Again, taking an intestate share will alter the construction of the will and you will end up getting property that the decedent gave to someone else in his or her will.

The elective share or taking an intestate share will give you a large sum of property if your spouse did not include you or gives you a small gift in his or her will.  The determination of the whether the elective share or pretermitted share is larger is a technical analysis based on many varying facts that needs to be evaluated by an attorney.

3) Florida’ s Family Allowance - The surviving spouse can also receive money from the decedent’s estate through the family allowance under section 732.403, Florida Statutes (2009).  The surviving spouse is entitled up to $18,000 during the administration of the estate.  This sum is in addition to the elective share or homestead.  So, the family allowance will give you money to support yourself before you get any property at the end of probate even if you were not left anything in the will or trust.

Hopefully, you realize by now that your spouse cannot leave you destitute when they die.  These protections for you can be waived by a prenuptial or postnuptial agreement, so watch out before signing any martial agreements.  There are strict time limits to claim some of these rights in the Florida probate court, so come see me if your spouse passed away and you are worried that you will not be able to make ends meet under the terms of your spouse’s will and trust.

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