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What Rights Does A Surviving Spouse Have In Florida?


A person’s estate may have to go through the probate process regardless of whether they did or did not have a will. When an estate has to go through probate, surviving spouses of the deceased are given certain rights under Florida law. This is especially important when the deceased had children from a previous marriage. If your spouse has passed away, our St. Petersburg estate planning lawyer explains your rights below.

What Do You Receive if Your Spouse has Passed Away? 

State law dictates that if your spouse has passed away without a will, known as dying intestate, you may have a right to all or half of their estate, depending on how many children you share with your spouse. The manner in which the estate will be divided is as follows:

  • If you and your spouse are the biological parents of all children involved, you will receive the entire estate of the deceased.
  • If you are not the biological parent of one or more children involved, you have a right to half of your spouse’s estate.
  • If you and your spouse are the biological parents of one or more children, but you as the surviving spouse have one or more children you did not share with the deceased, you are entitled to half of the estate.

If you and your spouse married after they had created a will, you have a right to the same share of property you would if there had not been a will. However, there are exceptions to this.

Factors that Can Impact Your Rights as a Surviving Spouse 

There are many factors that can impact your rights as a surviving spouse. These are as follows:

  • You had a premarital or postnuptial agreement in place that waived a spouse’s rights to the marital home or other types of property.
  • The will outlined specific property that was left to the spouse.
  • The will specifically states that the surviving spouse should not receive any property after the testator’s death.

It is also important to note that unless there was a premarital or postnuptial agreement, Florida law makes it very difficult to disinherit a spouse, allowing a surviving spouse to still receive an elective share. The surviving spouse has a right to this share even if the estate does not have to go through the probate process.

The elective share is equal to 30 percent of your spouse’s assets, including the assets that are not required to pass through probate. These assets can include life insurance policies, the probate estate, revocable trusts, and pay-on-death accounts. You must take this elective share within six months after you receive notice of administration of the estate, or within two years of your spouse’s death.

Contact Our Estate Planning Lawyer in St. Petersburg to Learn More About Your Rights 

Florida law is far more complex than the general rules outlined above, so it is always important to speak to a St. Petersburg estate planning lawyer. At Legacy Protection Lawyers, LLP, our seasoned attorneys can advise you of your rights during this difficult time and help with the appropriate process to ensure you receive your fair share. Call us now at 727-471-5868 or contact us online to request a consultation and to learn more.




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