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Rights of a Surviving Spouse

As a surviving spouse, it is important to know your rights, since oftentimes the probate process may seem confusing. If your deceased spouse passes with a will, in which he or she devised his or her property to anyone other than you, you still have rights to the property. Under Florida law, as a surviving spouse, you may be entitled to 30% of the estate, even though you are omitted from your spouses will. This is called an elective share.

If your deceased spouse did not leave a will, you should receive a life estate in his or her homestead property and that property will pass to the other decedents, such as children, upon your death. In other words, you should still be able to live in the home you shared with your deceased spouse for your lifetime.

As a surviving spouse, you can also choose to receive a 50 percent undivided interest in the homestead property, which would make you a tenant in common with any other descendant of the decedent. So as a surviving spouse you may either hold a life estate in the homestead property or you can choose to own a 50 percent share in the property with any other descendant. If you do not wish to live in the home upon your spouse’s passing the latter may be the best option for you.

Beware that sometimes in marital agreements, like prenups or post-nuptial agreements, spouses may waive their rights to homestead property without even realizing, so it is important to look at the details of these documents. Contact our probate attorney for more information and a FREE consultation at (954) 515-5000.

For further information, refer the Florida statute 732.401 below:

Descent of homestead.—

If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes

In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

The right of election may be exercised:

1. By the surviving spouse; or

2. With the approval of a court having jurisdiction of the real property, by an attorney in fact or guardian of the property of the surviving spouse. Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.

(b) The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime. The time for making the election may not be extended except as provided in paragraph (c).

(c) A petition by an attorney in fact or guardian of the property for approval to make the election tolls the time for making the election until 6 months after the decedent’s death or 30 days after the rendition of an order authorizing the election, whichever occurs last.

(d) Once made, the election is irrevocable.

(e) The election shall be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located.

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