Probate can be a complex and emotional process, especially when it comes to determining the rights of a surviving spouse. In the state of Florida, spousal rights in probate are governed by specific laws and regulations that aim to protect the interests of the surviving spouse. In this blog post, we will delve into the intricacies of spousal rights in Florida probate and provide you with a comprehensive guide to navigate this often intricate terrain.
- Understanding spousal rights in Florida probate is crucial for both spouses and their families.
- Florida law provides certain protections and benefits to surviving spouses during the probate process.
- Spousal rights can include homestead rights, exempt property, family allowance, and elective share.
1. Homestead Rights
In Florida, the homestead is given special protection under the law. The homestead refers to the primary residence of the married couple, and the surviving spouse is entitled to certain rights regarding this property. The Florida Constitution grants a surviving spouse the right to occupy and own the homestead property, regardless of whether it was owned jointly or solely by the deceased spouse. However, there are certain limitations and exceptions to these rights, such as debt obligations and homestead size restrictions.
Probate proceedings involving homestead property in Florida can be complex, especially when determining the rights of a surviving spouse. In certain cases, a surviving spouse may have the option to elect to take an undivided one-half interest in the homestead property as a tenant-in-common with the decedent’s lineal descendants..
Surviving spouses in Florida may have the right to elect to take a one-half interest in the decedent’s homestead property. The election must be made within six months of the decedent’s death and during the surviving spouse’s lifetime. The decision to choose co-ownership versus a life estate depends on various factors, including the surviving spouse’s age and the cost of property maintenance. The deadline for making the election cannot be extended, making it crucial for surviving spouses to promptly assess their options.
Homestead property in Florida is granted special protection under Article X, Section 4 of the Florida Constitution. It is safeguarded against levy, execution by most judgment creditors, and claims from creditors post-death. Homestead property also receives distinct property tax treatment and is subject to specific restrictions on its descent and devise upon the owner’s death.
According to Florida Statute §732.401(1), if the decedent has not devised their homestead property as authorized by law, it will descend in the same manner as other intestate property. However, if the decedent is survived by a spouse and one or more descendants, the surviving spouse will receive a life estate in the homestead, with the descendants being entitled to the remainder interest.
Florida law provides an alternative to the life estate option. The surviving spouse can elect to take an undivided one-half interest in the homestead as a tenant-in-common with the remaining beneficiaries. This election can be made by the surviving spouse or, with court approval, by the surviving spouse’s attorney-in-fact or guardian. Factors such as the surviving spouse’s age and property maintenance costs should be considered to determine the best course of action.
It is crucial for surviving spouses to make a prompt decision regarding the election of one-half interest in the homestead. The election must be made within six months of the decedent’s death and during the surviving spouse’s lifetime. Recent legal precedent, such as the case of Samad v Pla, has established that the six-month deadline is strict and cannot be extended. Therefore, it is imperative for surviving spouses to carefully assess their options and file a notice of election with the legal description of the homestead property within the specified timeframe.
Understanding spousal rights to one-half interest in decedent’s homestead property in Florida probate is essential for surviving spouses. By being aware of the available options and the strict timelines involved, surviving spouses can make informed decisions that align with their best interests. If you find yourself in a probate situation involving homestead property, seeking guidance from a knowledgeable attorney specializing in probate and estate planning is highly recommended. They can provide valuable advice and ensure your rights are protected throughout the process.
2. Other Exempt Property (besides Homestead)
Another important aspect of spousal rights in Florida probate is the concept of exempt property. The surviving spouse has the right to claim certain property as exempt from the claims of creditors. This typically includes household furnishings, appliances, and personal effects up to a specified value.
Florida Statute §732.402 establishes spousal rights to exempt property in Florida probate. The statute outlines the following spousal rights:
Right to Exempt Property: If the decedent was domiciled in Florida at the time of death, the surviving spouse or, if there is no surviving spouse, the children of the decedent have the right to a share of the decedent’s estate designated as “exempt property.”
Components of Exempt Property: Exempt property consists of the following:
Household furniture, furnishings, and appliances in the decedent’s usual place of abode, up to a net value of $20,000 as of the date of death.
Two motor vehicles held in the decedent’s name, regularly used by the decedent or immediate family members as personal vehicles, and not exceeding a gross vehicle weight of 15,000 pounds individually.
Qualified tuition programs authorized by the Internal Revenue Code, including the Florida Prepaid College Trust Fund contracts and participation agreements.
Benefits paid under s. 112.1915.
Exemption from Claims: Exempt property is protected from all claims against the estate, except for perfected security interests.
Additional to Other Entitlements: Exempt property is in addition to protected homestead, statutory entitlements, and property passing under the decedent’s will or by intestate succession.
Exception for Specifically Devised Property: Property specifically or demonstratively devised by the decedent’s will to any devisee is not included in exempt property. However, persons who would otherwise be entitled to specifically devised property as exempt property may petition the court to have it deemed exempt, subject to compliance with the statute’s provisions.
Waiver and Petition: Persons entitled to exempt property must file a petition for determination of exempt property within a specified timeframe. Failure to do so will be deemed a waiver of their rights under this section.
Exclusion from Estate Valuation: Property determined as exempt under this section is excluded from the valuation of the estate before determining residuary, intestate, pretermitted, or elective shares.
These provisions ensure that surviving spouses and children are entitled to specific property exemptions, providing them with certain rights and protections during the probate process in Florida. Specific exemptions allow the asset to be taken away from unsecured creditor claims. This means that they can be allocated to the spouse even if debts of the estate would otherwise require the asset to be liquidated. Note that any secured lien (a debt obligation tied to the property, like a car loan) runs with the Property. While other non-secured debts cannot attach to exempt assets. This is an especially powerful tool for spouses.
Florida law recognizes the importance of providing for the surviving spouse and minor children during the probate process. As such, the surviving spouse may be entitled to a family allowance, which is an amount intended to cover their support and maintenance expenses during the administration of the estate. The family allowance is typically determined based on the estate’s value and the surviving spouse’s needs.
During the probate process in Florida, the state recognizes the importance of providing for the surviving spouse and minor children. To address this, Florida law allows for a family allowance, which is an amount intended to cover the support and maintenance expenses of the surviving spouse and eligible children during the administration of the estate.
The family allowance is typically determined based on the value of the estate and the needs of the surviving spouse and minor children. It is designed to provide immediate financial support, allowing the family to meet their essential living expenses while the probate process is ongoing.
The purpose of the family allowance is to ensure that the surviving spouse and minor children are not left financially vulnerable during the estate administration period. It helps provide stability and support, particularly in situations where the estate assets may be tied up or inaccessible for an extended period.
It’s important to note that the family allowance takes priority over most claims against the estate. This means that the surviving spouse and eligible children have a right to receive the family allowance before other creditors can make claims against the estate.
To qualify for the family allowance, the surviving spouse or a legal representative must make a formal request to the court overseeing the probate proceedings. The court will consider factors such as the value of the estate, the surviving spouse’s financial needs, and the needs of any eligible minor children in determining the appropriate amount for the family allowance.
By providing a family allowance, Florida law aims to prioritize the well-being and financial security of the surviving spouse and minor children during the probate process. It ensures that they have the necessary means to maintain their standard of living while the estate is being settled.
Florida’s family allowance is a provision that grants a surviving spouse a reasonable allowance for their maintenance during the administration of the estate. According to Fla. Stat. § 732.403, the surviving spouse has the right to receive an allowance out of the estate, capped at $18,000. This allowance is intended to cover the spouse’s expenses and can be used for their benefit and the benefit of any dependent lineal heirs.
It’s important to note that the right to the family allowance can be waived by a prenuptial or postnuptial agreement. In the case of Taylor v. Taylor, the Florida District Court of Appeal determined that a prenuptial agreement can indeed waive a surviving spouse’s right to the family allowance. The court interpreted Fla. Stat. § 732.702(1), which allows for the waiver of various rights, including the right to a family allowance. Therefore, if a valid agreement is in place, the surviving spouse may not be entitled to receive the family allowance.
4. Right as Pretermitted Spouse
It is not uncommon for a decedent to have created a will before getting married and passing away without updating the will to include the spouse as a beneficiary. In such cases, the spouse is known as a “pretermitted spouse.” Florida law recognizes and protects the rights of pretermitted spouses to prevent unintentional disinheritance (Ganier’s Estate v. Ganier’s Estate, 418 So.2d 256, 262 (Fla. 1982)).
According to Section 732.301 of the Florida Statutes, a surviving spouse who marries after making a will is entitled to a share in the decedent’s estate that is equal in value to what they would have received if the decedent had died intestate (without a will). However, there are exceptions to this rule. A pretermitted spouse is not entitled to an intestate share if any of the following exceptions apply:
Provision or waiver: The spouse made provisions for or waived their rights through a prenuptial or postnuptial agreement.
Inclusion in the will: The will specifically provides for the spouse.
Intention not to provide: The will clearly discloses an intention not to make any provision for the spouse (§§732.301(1)-(3), Fla. Stat.).
If none of these exceptions applies, an absolute presumption arises, establishing the spouse as a pretermitted spouse (In re Dumas’ Estate, 413 So.2d 58 (Fla. 5th DCA 1982)). However, if the spouse is mentioned in the will executed before the marriage, they have the burden of proving, by a preponderance of evidence, that the provision was not made in contemplation of marriage (In re Estate of Gaspelin, 542 So.2d 1023 (Fla. 2nd DCA 1989); In re Livingston’s Estate, 172 So.2d 619 (Fla. 2nd DCA 1965)). The surviving spouse can present evidence other than the will itself and demonstrate the circumstances existing at the time of the will’s execution to meet this burden (Ganier’s Estate at 261 and Perkins v. Brown, 27 So.2d 521 (Fla. 1946)).
It’s important to note that filing the decedent’s will with the court and petitioning for its administration, or filing a conditional election to take an elective share, does not estop a spouse from claiming the rights of a pretermitted spouse (In re Estate of Gaspelin at 1026).
5. Elective Share
In addition to the above rights, Florida law provides the surviving spouse with the option to claim an elective share of the deceased spouse’s estate. The elective share is a statutory share of the estate that the surviving spouse can choose to receive instead of what was left to them in the deceased spouse’s will or through intestacy laws. The purpose of the elective share is to prevent disinheritance of the surviving spouse by ensuring they receive a fair portion of the estate.
The traditional concept of dower and curtsey, which protected surviving spouses from being disinherited, was abolished in Florida in 1975. In its place, the elective share regime was enacted to provide stronger protection for surviving spouses. Initially, the elective share amounted to thirty percent (30%) of the fair market value of assets subject to probate administration, with exceptions for out-of-state real estate. Florida introduced a new elective share law in 1999, which introduced the concept of the “augmented estate.” This law took effect on October 1, 1999, and applies to decedents who passed away on or after October 1, 2001 (§732.2155(1), Fla. Stat.). Under the new law, the augmented estate includes not only the probate estate but also a broader range of assets. This includes assets held in revocable trusts, jointly held assets, and certain property transferred during the decedent’s lifetime. That is a crucial expansion because the augmented elective share allows spouses to get more assets than what is simply in the Probate Estate. The 30% entitlement applies to a broad range of assets and
This change in the elective share law aimed to prevent circumvention of spousal rights by expanding the scope of assets considered when determining the elective share. By including a wider range of assets, the surviving spouse’s right to a fair share of the decedent’s estate is better protected.
Property Entering into Augmented Elective Estate
When calculating the augmented elective estate in Florida, various types of property interests are taken into account, as outlined in Section 732.2035 of the Florida Statutes. These property interests include:
The decedent’s probate estate.
The decedent’s interest in property that constitutes the protected homestead.
The decedent’s ownership interest in accounts or securities registered in certain forms, such as “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of survivorship. In the case of accounts or securities held in tenancy by the entirety, the interest is one-half of the value, while in other cases, it refers to the portion that the decedent had the right to withdraw or use without accountability to any person.
The decedent’s fractional interest in property held in joint tenancy with right of survivorship or tenancy by the entirety, excluding property mentioned in subsections (3) or (8). The decedent’s fractional interest is calculated by dividing the value of the property by the number of tenants.
Property transferred by the decedent that was revocable at the time of their death, either alone or in conjunction with others. However, this excludes transfers that require the consent of all persons with a beneficial interest in the property.
Property transferred by the decedent, excluding property described in subsections (2), (4), (5), or (8), if at the time of the decedent’s death: a. The decedent had the right to possess, enjoy, or receive income or principal from the property, or b. The distribution or appointment of the principal of the property could be made at the discretion of someone other than the decedent, excluding the spouse.
In the application of subsection (6), certain payment rights under annuities, trusts, or similar arrangements are treated as rights to the income of the property necessary to equal the payment.
Additionally, the augmented elective estate includes:
The decedent’s beneficial interest in the net cash surrender value of any life insurance policy on their life.
Amounts payable to or for the benefit of any person by reason of surviving the decedent under any public or private pension, retirement, or deferred compensation plan, excluding benefits under the federal Railroad Retirement Act or federal Social Security System. For defined contribution plans, the excess proceeds from life insurance policies over the net cash surrender value are not included.
Property transferred by the decedent during the one-year period preceding their death, categorized as: a. Property transferred as a result of terminating a right, interest, or power over property that would have been included in the elective estate, or b. Transfers of property made to or for the benefit of any person, except for specific exclusions such as medical or educational expenses and transfers subject to annual exclusion amounts under the United States gift tax.
Call Us to Learn More About Your Rights as a Surviving Spouse Under Florida Law
If you have questions about anything you read here we would love to hear from you. We handle estate administration and spousal entitlement litigation throughout the State of Florida. Give us a call for a free, no obligation consultation to make sure that you understand your entitlements and are protecting your rights under Florida law.
-Brice Zoecklein, Esq.
Zoecklein Law, PA
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
ADDITIONAL RESOURCES: Interested in learning even more about spousal rights in Florida Estate Proceedings? Click the links below for some additional blogs. We have also provided some of the most relevant statutory authority cited in this article below.
- Waiver of Spousal Rights Under Florida Probate Law
- Can You Sell Your Homestead Without Your Spouse if You Are Married in Florida
- What Happens When You Get Divorced and Fail to Update Your Last Will and Testament or Estate Planning Documents in Florida
732.402 Exempt property.—
(1) If a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent as provided in this section, to be designated “exempt property.”
(2) Exempt property shall consist of:
(a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death.
(b) Two motor vehicles as defined in s. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.
(c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981.
(d) All benefits paid pursuant to s. 112.1915.
(3) Exempt property shall be exempt from all claims against the estate except perfected security interests thereon.
(4) Exempt property shall be in addition to protected homestead, statutory entitlements, and property passing under the decedent’s will or by intestate succession.
(5) Property specifically or demonstratively devised by the decedent’s will to any devisee shall not be included in exempt property. However, persons to whom property has been specifically or demonstratively devised and who would otherwise be entitled to it as exempt property under this section may have the court determine the property to be exempt from claims, except for perfected security interests thereon, after complying with the provisions of subsection (6).
(6) Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to this section.
(7) Property determined as exempt under this section shall be excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.
732.403 Family allowance.—In addition to protected homestead and statutory entitlements, if the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. The court may order this allowance to be paid as a lump sum or in periodic installments. The allowance shall not exceed a total of $18,000. It shall be paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. If the surviving spouse is not living, it shall be paid to the lineal heirs or to the persons having their care and custody. If any lineal heir is not living with the surviving spouse, the allowance may be made partly to the lineal heir or guardian or other person having the heir’s care and custody and partly to the surviving spouse, as the needs of the dependent heir and the surviving spouse appear. The family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides. The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid. For purposes of this section, the term “lineal heir” or “lineal heirs” means lineal ascendants and lineal descendants of the decedent.
732.2035 Property entering into elective estate.—Except as provided in s. 732.2045, the elective estate consists of the sum of the values as determined under s. 732.2055 of the following property interests:
(1) The decedent’s probate estate.
(2) The decedent’s interest in property which constitutes the protected homestead of the decedent.
(3) The decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of survivorship form. For this purpose, “decedent’s ownership interest” means, in the case of accounts or securities held in tenancy by the entirety, one-half of the value of the account or security, and in all other cases, that portion of the accounts or securities which the decedent had, immediately before death, the right to withdraw or use without the duty to account to any person.
(4) The decedent’s fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety. For this purpose, “decedent’s fractional interest in property” means the value of the property divided by the number of tenants.
(5) That portion of property, other than property described in subsections (2) and (3), transferred by the decedent to the extent that at the time of the decedent’s death the transfer was revocable by the decedent alone or in conjunction with any other person. This subsection does not apply to a transfer that is revocable by the decedent only with the consent of all persons having a beneficial interest in the property.
(6)(a) That portion of property, other than property described in subsection (2), subsection (4), subsection (5), or subsection (8), transferred by the decedent to the extent that at the time of the decedent’s death:
1. The decedent possessed the right to, or in fact enjoyed the possession or use of, the income or principal of the property; or
2. The principal of the property could, in the discretion of any person other than the spouse of the decedent, be distributed or appointed to or for the benefit of the decedent.
In the application of this subsection, a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement shall be treated as a right to that portion of the income of the property necessary to equal the annuity, unitrust, or other payment.
(b) The amount included under this subsection is:
1. With respect to subparagraph (a)1., the value of the portion of the property to which the decedent’s right or enjoyment related, to the extent the portion passed to or for the benefit of any person other than the decedent’s probate estate; and
2. With respect to subparagraph (a)2., the value of the portion subject to the discretion, to the extent the portion passed to or for the benefit of any person other than the decedent’s probate estate.
(c) This subsection does not apply to any property if the decedent’s only interests in the property are that:
1. The property could be distributed to or for the benefit of the decedent only with the consent of all persons having a beneficial interest in the property; or
2. The income or principal of the property could be distributed to or for the benefit of the decedent only through the exercise or in default of an exercise of a general power of appointment held by any person other than the decedent; or
3. The income or principal of the property is or could be distributed in satisfaction of the decedent’s obligation of support; or
4. The decedent had a contingent right to receive principal, other than at the discretion of any person, which contingency was beyond the control of the decedent and which had not in fact occurred at the decedent’s death.
(7) The decedent’s beneficial interest in the net cash surrender value immediately before death of any policy of insurance on the decedent’s life.
(8) The value of amounts payable to or for the benefit of any person by reason of surviving the decedent under any public or private pension, retirement, or deferred compensation plan, or any similar arrangement, other than benefits payable under the federal Railroad Retirement Act or the federal Social Security System. In the case of a defined contribution plan as defined in s. 414(i) of the Internal Revenue Code of 1986, as amended, this subsection shall not apply to the excess of the proceeds of any insurance policy on the decedent’s life over the net cash surrender value of the policy immediately before the decedent’s death.
(9) Property that was transferred during the 1-year period preceding the decedent’s death as a result of a transfer by the decedent if the transfer was either of the following types:
(a) Any property transferred as a result of the termination of a right or interest in, or power over, property that would have been included in the elective estate under subsection (5) or subsection (6) if the right, interest, or power had not terminated until the decedent’s death.
(b) Any transfer of property to the extent not otherwise included in the elective estate, made to or for the benefit of any person, except:
1. Any transfer of property for medical or educational expenses to the extent it qualifies for exclusion from the United States gift tax under s. 2503(e) of the Internal Revenue Code, as amended; and
2. After the application of subparagraph 1., the first annual exclusion amount of property transferred to or for the benefit of each donee during the 1-year period, but only to the extent the transfer qualifies for exclusion from the United States gift tax under s. 2503(b) or (c) of the Internal Revenue Code, as amended. For purposes of this subparagraph, the term “annual exclusion amount” means the amount of one annual exclusion under s. 2503(b) or (c) of the Internal Revenue Code, as amended.
(c) Except as provided in paragraph (d), for purposes of this subsection:
1. A “termination” with respect to a right or interest in property occurs when the decedent transfers or relinquishes the right or interest, and, with respect to a power over property, a termination occurs when the power terminates by exercise, release, lapse, default, or otherwise.
2. A distribution from a trust the income or principal of which is subject to subsection (5), subsection (6), or subsection (10) shall be treated as a transfer of property by the decedent and not as a termination of a right or interest in, or a power over, property.
(d) Notwithstanding anything in paragraph (c) to the contrary:
1. A “termination” with respect to a right or interest in property does not occur when the right or interest terminates by the terms of the governing instrument unless the termination is determined by reference to the death of the decedent and the court finds that a principal purpose for the terms of the instrument relating to the termination was avoidance of the elective share.
2. A distribution from a trust is not subject to this subsection if the distribution is required by the terms of the governing instrument unless the event triggering the distribution is determined by reference to the death of the decedent and the court finds that a principal purpose of the terms of the governing instrument relating to the distribution is avoidance of the elective share.
(10) Property transferred in satisfaction of the elective share.