Some of these rights are subject to strict deadlines.

Can a Surviving Spouse Be Disinherited in Florida?

Not always.

Florida gives surviving spouses protections that can limit a person's ability to completely disinherit a spouse simply by signing a Will or Trust.

The most significant protection is often the elective share.

Florida Statute § 732.201 provides a surviving spouse of a person domiciled in Florida the right to claim an elective share of the deceased spouse's elective estate.

Under Florida Statute § 732.2065, the elective share is generally 30% of the elective estate.

Importantly, the elective estate may include more than property passing through probate.

That means a person generally cannot assume that placing property into a Revocable Living Trust, using certain beneficiary designations, or otherwise keeping assets outside probate automatically defeats a surviving spouse's elective-share rights.

For a more detailed discussion of contested elective-share cases, see our article Elective Share Litigation in Florida: Spouse vs. Adult Children.

1. Florida's Elective Share

The elective share is designed to provide a surviving spouse with a statutory minimum interest in certain property.

Rather than simply looking at what the Will leaves the spouse, Florida law calculates an elective estate.

That calculation can potentially include probate property and certain nonprobate interests described by Florida's elective-share statutes.

The resulting elective share is generally 30% of the elective estate.

However, that does not necessarily mean the spouse receives an additional 30% on top of everything else.

Property and benefits already passing to the spouse may be taken into account when determining how the elective share is satisfied.

Elective-share calculations can become complicated when an estate includes Trusts, jointly owned property, beneficiary-designated accounts, businesses, retirement accounts, or substantial lifetime transfers.

What Is the Deadline to Claim the Elective Share?

The deadline is extremely important.

Under Florida Statute § 732.2135, the election generally must be filed on or before the earlier of:

six months after service of the Notice of Administration on the surviving spouse, or two years after the decedent's death.

Florida law allows limited procedures for seeking an extension, but the request itself must comply with statutory requirements.

A spouse who believes an elective-share claim may exist should therefore obtain legal advice promptly rather than waiting for probate to conclude.

2. Florida Homestead Rights of a Surviving Spouse

Florida homestead law creates some of the most powerful—and complicated—rights in Florida probate.

A surviving spouse's rights depend on several factors, including:

whether the property qualified as protected homestead, whether the decedent had descendants, how the property was titled, and whether the homestead was validly devised.

When a decedent is survived by both a spouse and descendants and the homestead is not otherwise validly devised, Florida Statute § 732.401 generally gives the surviving spouse a life estate, with the remainder passing to the decedent's descendants.

The surviving spouse may instead elect to take an undivided one-half interest as a tenant in common, with the remaining one-half passing to the descendants.

That election generally must be made within six months after the decedent's death and during the surviving spouse's lifetime.

This can be an important decision.

A life estate and a one-half ownership interest create very different practical consequences involving possession, sale, expenses, and future inheritance.

For a broader explanation, read Florida Homestead Property in Probate: What Families Need to Know.

3. Can a Married Person Leave the Homestead to Someone Else?

Florida places restrictions on devising protected homestead when the owner is survived by a spouse or minor child.

This means a Will stating:

“I leave my home to my children”

does not necessarily control if the person dies married.

Florida constitutional and statutory homestead rules can override an attempted devise.

Homestead issues become particularly complicated in blended families.

For example, a person in a second marriage may want the surviving spouse to remain in the house while ultimately preserving the property for children from a prior marriage.

That type of planning should be addressed carefully during life rather than left for the probate court to untangle after death.

4. Exempt Property Rights

Florida law gives a surviving spouse certain rights to exempt property in addition to other inheritance rights.

Under Florida Statute § 732.402, qualifying exempt property can include household furniture, furnishings, and appliances at the decedent's usual residence up to a net value of $20,000, as well as up to two qualifying motor vehicles and certain qualified tuition-program benefits.

This property is generally protected from estate creditor claims except for perfected security interests.

If there is no surviving spouse, the decedent's children may have rights under the statute.

This is an important correction to a common misconception: exempt-property rights under § 732.402 are not limited only to minor children.

There is also a deadline.

A person entitled to exempt property generally must file the appropriate petition by the later of four months after service of the Notice of Administration or 40 days after termination of certain proceedings affecting the estate, as specified by the statute.

5. Family Allowance

Florida also provides a potential family allowance during estate administration.

Under Florida Statute § 732.403, a surviving spouse and certain lineal heirs whom the decedent was supporting or legally obligated to support may be entitled to a reasonable allowance from the estate for maintenance during administration.

The total allowance may not exceed $18,000.

The court may order payment as a lump sum or through periodic payments.

This is not limited simply to “minor children.” The statute refers more broadly to qualifying supported lineal heirs.

The family allowance is generally in addition to other statutory entitlements unless the Will provides otherwise.

6. What Does a Surviving Spouse Receive if There Is No Will?

If a Florida resident dies without a valid Will, Florida's intestacy statutes determine who inherits the probate estate.

The surviving spouse's share depends heavily on the family structure.

If the decedent leaves no descendants, the surviving spouse generally receives the entire intestate estate.

The spouse may also receive the entire intestate estate when all of the decedent's descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants.

However, the result changes in blended families.

If the decedent has one or more descendants who are not descendants of the surviving spouse, the surviving spouse generally receives one-half of the intestate estate.

Likewise, if all of the decedent's descendants are shared with the surviving spouse but the surviving spouse has one or more descendants from another relationship, the surviving spouse generally receives one-half.

This is why a simple statement such as “the spouse gets everything if all of the decedent's children are marital children” can be incomplete.

The surviving spouse's own family structure matters too.

7. What If the Couple Married After the Will Was Signed?

Florida also protects certain pretermitted spouses.

Suppose someone signs a Will, later gets married, and then dies without updating the Will.

Under Florida Statute § 732.301, the later spouse may be entitled to the same share the spouse would have received if the decedent had died without a Will.

There are important exceptions.

The protection may not apply if the spouse was provided for or waived rights through a prenuptial or postnuptial agreement, if the Will provides for the spouse, or if the Will clearly shows an intention not to provide for that spouse.

This is one reason estate plans should be reviewed after marriage.

8. Can a Prenuptial or Postnuptial Agreement Waive Spousal Rights?

Yes.

Florida Statute § 732.702 allows a spouse to waive various probate and inheritance rights, including rights to the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and certain other rights.

Waivers can arise through properly executed prenuptial agreements, postnuptial agreements, or other qualifying written agreements.

Whether a particular agreement actually waives a particular right depends on its language and whether Florida's legal requirements have been satisfied.

A surviving spouse should therefore have any prenuptial or postnuptial agreement reviewed before assuming that probate rights were completely waived.

9. Does a Surviving Spouse Have Priority to Become Personal Representative?

Sometimes.

If the decedent left a valid Will, Florida law generally gives first preference to the person nominated as personal representative in the Will.

But if the decedent died intestate, Florida Statute § 733.301 gives the surviving spouse first preference for appointment as personal representative, assuming the spouse otherwise qualifies to serve.

That can become important when multiple relatives want control over the estate.

The right to inherit and the right to serve as personal representative are separate issues.

10. What Rights Does an Unmarried Partner Have?

Living together for many years does not automatically give someone the same probate rights as a legal spouse.

Florida Statute § 741.211 provides that common-law marriages entered into in Florida after January 1, 1968, are generally not valid.

As a result, simply living together in Florida—even for decades—does not ordinarily create the elective-share, intestacy, exempt-property, family-allowance, or homestead rights available to a legally recognized spouse.

There can be additional issues involving purported marriages created in another jurisdiction, so unusual marital-status questions should be evaluated individually.

But for most unmarried Florida couples, the key planning lesson is straightforward:

Do not rely on the assumption that a long-term partner will automatically inherit.

Instead, unmarried couples may need coordinated estate planning involving Wills, Trusts, beneficiary designations, deeds, and other planning tools.

For more information on creating a coordinated plan, visit our Comprehensive Estate Planning Services in Florida.

Can a Surviving Spouse Receive More Than One of These Benefits?

Potentially, yes.

A surviving spouse's probate rights do not necessarily exist in isolation.

For example, a spouse might have issues involving homestead, exempt property, family allowance, and the elective share at the same time.

However, the way one benefit interacts with another can be complicated.

The value of property already received may affect elective-share calculations, while protected homestead and exempt property have their own statutory treatment.

This is one reason surviving-spouse probate matters should be evaluated as a whole rather than by looking at only the Will.

What If the Will Leaves Everything to the Children?

This situation frequently arises in second marriages.

Suppose a husband signs a Will leaving his entire estate to children from a previous marriage and leaves nothing to his current wife.

The Will does not necessarily end the analysis.

The surviving spouse may still need to evaluate potential rights involving:

the elective share, homestead, exempt property, family allowance, pretermitted-spouse protections if applicable, and any property passing outside probate.

Whether those claims are available depends on the facts, ownership of the assets, estate-planning documents, marital agreements, and applicable deadlines.

These cases can also create conflict between the surviving spouse and adult children.

Our article on Elective Share Litigation in Florida: Spouse vs. Adult Children discusses those disputes in more detail.

What Should a Surviving Spouse Do After a Death?

A surviving spouse should avoid immediately signing waivers, disclaimers, settlement agreements, deeds, or probate documents without understanding their effect.

The spouse should gather the Will, Trust, prenuptial or postnuptial agreements, deeds, beneficiary designations, financial statements, and any Notice of Administration that has been received.

Particular attention should be paid to dates.

Elective-share rights, exempt-property rights, homestead elections, and other probate claims can have different deadlines.

Waiting until the estate is nearly closed can significantly limit available options.

Frequently Asked Questions About Surviving Spouse Rights in Florida

Can my spouse leave me nothing in a Florida Will?

A Will can state that a spouse receives nothing, but Florida law may still give the surviving spouse rights such as the elective share and homestead protections unless those rights were validly waived or another exception applies.

Is the elective share 30% of the probate estate?

Not necessarily.

The elective share is generally 30% of the elective estate, which may include certain property outside the probate estate.

Does a spouse automatically inherit the house?

Not necessarily.

The result depends on how the property was titled, whether it qualified as protected homestead, whether there are descendants, and whether the property was validly devised.

Can a spouse choose half of the homestead instead of a life estate?

In qualifying circumstances under § 732.401, yes.

The surviving spouse may elect an undivided one-half interest as a tenant in common instead of the statutory life estate, but the election generally must be made within six months after death.

Does a surviving spouse always inherit everything if there is no Will?

No.

The spouse's intestate share depends on whether the decedent had descendants and whether either spouse has descendants from other relationships.

Does a girlfriend or boyfriend inherit automatically after living together for many years?

Generally, no.

Long-term cohabitation in Florida does not itself create the statutory probate rights available to a legally recognized spouse.

Can a prenup waive elective-share rights?

Yes, if the agreement validly waives those rights under Florida law.

Surviving Spouse Rights Can Be Time-Sensitive

Florida provides surviving spouses with significant protections, but those rights do not always enforce themselves automatically.

Some require elections or petitions, and many have deadlines.

The correct analysis may involve the Will, Trust, homestead, prenuptial agreement, beneficiary designations, property ownership, family structure, and probate docket.

At Gold Legacy Law, PLLC, we assist surviving spouses, personal representatives, beneficiaries, and families with Florida probate, elective-share disputes, homestead issues, Trust administration, and probate litigation.

For a broader overview of the probate process, visit our Florida Probate Attorneys page or our Florida Probate FAQs.

If you have questions concerning surviving-spouse rights in a Florida estate, contact Gold Legacy Law or call (305) 556-5209.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Gold Legacy Law, PLLC. Surviving-spouse rights and probate deadlines are fact-specific. Consult a qualified Florida attorney regarding your particular circumstances.