Are there Florida laws that pre-empt even the most well-thought-out estate plans? In some cases, yes. For example, someone in a strained marriage, or who is estranged from a spouse, may write an estate plan that prevents that spouse from receiving a full share of their estate. The surviving spouse may find relief in Florida law. Let’s take a look at some of those laws.
Florida residents who die owning Florida homestead property, which carries with it asset protection benefits for the owner and his or her heirs upon death, are also subject to devise restrictions. In other words, if the owner is married or has minor children, he or she is restricted in terms of whom the property is ultimately distributed to after death.
If the property is only in the homeowner’s name, then the surviving spouse receives a life estate in the property (but may instead elect a 50% tenant-in-common interest). The surviving spouse will pay for expenses like maintenance and taxes, while large repairs are divided between the surviving spouse and the remainder beneficiaries. These beneficiaries typically are the homeowner’s children.
Even if the homeowner makes a Will disinheriting the surviving spouse, he or she is still due a portion of the property through Florida homestead exemption law.
Under Florida statutes, the surviving spouse of a Florida resident has a right to receive 30% of the elective estate of their deceased spouse.
Keep in mind, however, that a decedent may have assets that do not become part of his or her probate estate. Assets that are not part of the probate estate, such as accounts passing by beneficiary designation, typically will become part of the elective estate.
In addition to the homestead exemption and the elective share, surviving spouses may receive a deceased spouse’s estate if he or she failed to include the spouse in their Will, and the Will was written prior to marriage. Finally, Florida families may be entitled to a family allowance of up to $18,000 from the decedent’s estate.
John Mangan is an experienced Florida estate planning attorney who has been board certified in Wills, Trusts & Estates by the Florida Bar. At the Law Offices of John Mangan, P.A., we have assisted many clients in developing comprehensive estate plans that meet their needs. Call us at 772-324-9050 to set up an appointment or use our convenient Contact Form.