What Are My Rights as the Surviving Spouse?

What Are My Rights as the Surviving Spouse?

When a spouse passes away, the surviving spouse has many decisions to make. It’s important to know a surviving spouse’s rights as those decisions are made. Fortunately, Florida statutes contain provisions stating certain surviving spouse rights.

Will vs. Intestate

The first thing to learn is whether the deceased person (the decedent) executed a valid Will. If so, probate assets will pass in compliance with the terms of the Will, subject to statutory spousal rights.

If the decedent did not leave a Will, the estate assets will pass in the following manner:

  • The Entire Estate. The surviving spouse receives the entire estate if the decedent has no surviving descendants.

This is also true if all the decedent’s descendants are also descendants of the surviving spouse. For example, if Bob and Mary have three children, the surviving spouse would inherit the entire estate when the other dies because all the descendants are from both Bob and Mary.

  • One Half of the Estate. If the decedent had lineal descendants that are not descendants of the surviving spouse, the surviving spouse gets one-half of the intestate estate. So, if Bob had two children from a previous marriage, Mary would receive one-half of the estate.

Also, if the decedent and surviving spouse both had lineal descendants that are not descendants of the other, the surviving spouse gets one-half of the estate. In the scenario we’ve been following, if Bob and Mary had two children together and Mary had a child from a previous marriage, Mary receives half of the state.

Pretermitted Spouse

Occasionally, an individual will execute a valid Will as a single person, but then fail to update the Will to include his or her spouse. Florida intestacy laws state that the surviving spouse will receive a share of the estate equal to what he or she would have received if the decedent had died intestate unless:

  • There’s a prenuptial or postnuptial agreement providing for the spouse;
  • The Will provides for the spouse; or
  • The Will states the decedent did not intend to provide for the spouse.

Other Surviving Spouse Rights

In addition to benefits related to whether the decedent died testate or intestate, state law provides the following rights to surviving spouses:

  • Generally, the homestead passes to the spouse. If there are descendants, the surviving spouse may have a life estate in the homestead or remain in the home as a tenant in common.
  • Surviving spouses may claim a family allowance of up to $18,000. This money provides support and maintenance while the decedent’s estate is administered.
  • Florida law provides that surviving spouses can claim some property as exempt property, including household furnishings up to $20,000 and two (2) motor vehicles less than 15,000 pounds gross vehicle weight each. The items listed in the statute are exempt from most claims against the estate, meaning the property passes to the family even if there are claims against the estate.

Learn More About Your Rights as Surviving Spouse

Law Offices of John Mangan, P.A.     Palm City – Stuart, FL

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