Does a Spouse Automatically Inherit Everything in Florida?

No. A surviving spouse in Florida does not automatically inherit everything. What the spouse receives depends on whether the deceased spouse left a will and whether either spouse had children from another relationship. It also depends on how each asset was titled and whether the asset passes by beneficiary designation instead of through probate.

A Florida will cannot take away the surviving spouse’s elective share, homestead rights, or family allowance, and it reaches exempt property only by leaving a specific item to someone else. Beyond those protections, what the spouse receives varies by asset type. Some assets pass to the surviving spouse automatically regardless of any will or court proceeding. Others pass through probate and may be shared with children or other heirs.

What Assets Pass Automatically to the Surviving Spouse?

Tenancy by the entirety property, joint survivorship accounts, and beneficiary-designated assets bypass probate and pass to the surviving spouse when the spouse is the co-owner or the named beneficiary.

Tenancy by the entirety property. Any asset titled jointly between spouses as tenants by the entirety passes automatically to the surviving spouse at the first spouse’s death. This includes the family home (if titled this way), bank accounts, and investment accounts. No probate is required, and no creditor of the deceased spouse alone can reach tenancy by the entirety assets.

Joint accounts with right of survivorship. Bank and brokerage accounts held jointly with right of survivorship pass to the surviving co-owner. For married couples in Florida, joint accounts are presumed to be tenancy by the entirety accounts unless the account agreement provides otherwise.

Beneficiary designations. Life insurance policies, retirement accounts (IRAs, 401(k) plans), annuities, and payable-on-death bank accounts pass to whoever is named as the beneficiary. If the surviving spouse is named, the spouse receives these assets directly. If someone else is named, the will has no effect on these assets; the surviving spouse’s only route to them is the elective share described below and, for an employer 401(k), the federal spousal-consent rules.

These transfers happen outside of probate and without a court order. They are not affected by the deceased spouse’s debts, and they are not subject to Florida’s intestate succession rules.

What Happens When There Is No Will?

Florida’s intestate succession law gives the surviving spouse either the entire probate estate or half of it, depending on whether the deceased spouse left descendants and whether either spouse had children from another relationship. Descendants are a person’s children and, if a child died first, that child’s own children.

If the deceased spouse left no descendants, or all descendants on both sides are descendants of both spouses. The surviving spouse inherits the entire probate estate.

If the deceased spouse had children from another relationship. The surviving spouse receives half of the probate estate. The other half passes to the deceased spouse’s descendants, split by family line, so the children of a child who died first share only that child’s portion. This split applies even if the surviving spouse and the deceased spouse also had children together.

If the surviving spouse has children from another relationship and the deceased spouse left descendants. The surviving spouse again receives half, and the deceased spouse’s descendants take the other half. If the deceased spouse left no descendants at all, the surviving spouse takes the entire probate estate no matter how many children the surviving spouse has from another relationship.

The probate estate consists only of assets owned in the deceased spouse’s name alone. Assets that pass through beneficiary designations, joint ownership, or trust structures are not part of the probate estate and are not affected by intestate succession.

What Happens When There Is a Will?

A will allows the deceased spouse to direct how probate assets are distributed, but Florida law limits how much a will can divert away from the surviving spouse.

The elective share. Florida law gives a surviving spouse the right to claim 30% of the “elective estate.” The elective estate reaches beyond probate assets. It also includes certain trust assets, joint and pay-on-death accounts, retirement plan death benefits, the cash value of life insurance, and transfers made within the year before death. The elective share exists to prevent a spouse from being effectively disinherited.

A surviving spouse who receives less than 30% can file an elective share claim. The deadline is six months after the spouse is served with the notice of administration, the formal notice that probate has opened. Absent a court-granted extension, the election cannot be filed later than two years after the death.

Whatever the surviving spouse already receives counts first toward the 30%: the deceased spouse’s share of a joint account, life insurance proceeds paid to the spouse, and a retirement account payable to the spouse all reduce the amount still owed. The balance comes first from the probate estate and any revocable trust, and only after that from other people who received elective estate property.

Pretermitted spouse. If the deceased spouse executed a will before the marriage and never updated it, the surviving spouse is treated as though no will existed. The spouse takes the share an intestate spouse would receive, unless a prenuptial or postnuptial agreement provides otherwise, the will provides for the spouse, or the will shows an intention not to provide for a future spouse.

What Is a Surviving Spouse Entitled to in Florida Regardless of the Will?

A surviving spouse in Florida keeps the elective share, homestead rights, exempt property, and the family allowance regardless of the will’s terms, unless the spouse signed a valid waiver or the will specifically leaves an item of exempt property to someone else. That holds even when the will leaves everything to the deceased spouse’s children from a first marriage.

Elective share. The surviving spouse can claim 30% of the elective estate.

Homestead. If the deceased spouse left descendants, the surviving spouse takes a life estate in the home or, by election within six months, a half interest as a tenant in common. If there are no descendants, the spouse takes the home outright.

Exempt property. Household furniture, furnishings, and appliances worth up to $20,000, plus two family vehicles titled in the deceased spouse’s name, go to the surviving spouse ahead of creditors and other heirs. A will can redirect an item only by naming it specifically. The spouse must petition for the property within four months after the notice of administration.

Family allowance. The court can award up to $18,000 for the family’s living expenses during probate, paid to the surviving spouse, and the allowance does not reduce anything else the spouse receives unless the will says so.

Pretermitted share. A spouse who married the deceased after the will was signed takes an intestate share unless the will provides for the spouse or shows an intent to leave the spouse out, or a marital agreement covers it.

Preference as personal representative. When there is no will, the surviving spouse has first preference to be appointed personal representative of the estate.

Who Gets the House When a Spouse Dies in Florida?

The surviving spouse gets the house outright when it is titled to both spouses as tenants by the entirety. When the homestead is held in the deceased spouse’s name alone, the surviving spouse gets it for life and the deceased spouse’s descendants take it afterward. The spouse can instead elect a half interest within six months. If the deceased spouse left no descendants, the surviving spouse takes the homestead outright.

Florida’s constitution bars leaving the homestead away from a surviving spouse, and § 732.401 sets these descent rules; together they override the will. When the deceased spouse leaves a spouse and descendants, the surviving spouse receives a life estate, meaning the right to live in the home for the rest of the spouse’s life. The descendants receive the remainder interest, meaning ownership of the home once the life estate ends.

Instead of the life estate, the surviving spouse can elect to take a one-half interest as a tenant in common. That means the spouse and the descendants each own an undivided half of the home outright, and the spouse’s half can be sold or left by will. The election must be recorded within six months of the death, and once made it cannot be revoked.

The homestead cannot be devised away from the surviving spouse by will. If there is no minor child, the homestead may be left by will to the surviving spouse. A devise to anyone else fails, and the homestead then descends as if there were no will: a life estate and remainder split when descendants survive, outright to the spouse when none do.

In a blended family, the surviving spouse ends up with a life estate while the deceased spouse’s children from another relationship hold the remainder, and neither side can sell the whole home without the other. Many married couples hold their home as tenants by the entirety for that reason. Entireties property is not subject to the homestead descent rules and passes to the surviving spouse outright.

Prenuptial and Postnuptial Agreements

A valid prenuptial or postnuptial agreement can change all of the default inheritance rules. A spouse can waive the elective share, waive homestead rights, waive the right to be the personal representative, and agree to accept specific assets or amounts in place of the statutory protections. Under Florida’s spousal-waiver statute, the agreement must be in writing and signed before two subscribing witnesses. Fair disclosure of the other spouse’s assets is required only for a waiver signed after the marriage.

Florida does not recognize legal separation. A married spouse retains full inheritance rights whether the couple is living together or apart. During a marriage, spousal inheritance rights end only by a signed, witnessed written waiver, usually a postnuptial agreement or a deed waiver of homestead devise rights, or by divorce.

Florida Waiver of Spousal Rights Form

The sample below is a standalone waiver of spousal rights, signed by one spouse before two subscribing witnesses. It is neither filed with a court nor recorded, and it reaches the elective share, homestead, exempt property, the family allowance, and the other rights a surviving spouse would otherwise take.

Common Situations Where the Spouse Does Not Get Everything

Beyond a blended family, a surviving spouse receives less than everything when a beneficiary form names someone else, when assets sit in an irrevocable trust, or when the deceased spouse gave property away during life.

Outdated Beneficiary Designations

When a Florida decedent dies after a divorce, a beneficiary designation naming the former spouse on a life insurance policy, IRA, annuity, or pay-on-death account is void, and the ex-spouse is treated as having died first. Some designations still pay the ex-spouse: an employer 401(k) governed by federal law, one re-signed after the divorce that expressly names the ex-spouse, and, when no other asset satisfies it, one the divorce decree required. The beneficiary form controls the account regardless of the will, so a Florida estate plan covers the beneficiary forms as well as the will.

Assets in an Irrevocable Trust

Property the deceased spouse moved into an irrevocable trust during life is outside the probate estate, but it is not always outside the elective estate. Florida’s elective-estate statute pulls a trust transfer back in when the deceased spouse could still revoke it or kept the income or use of the property. The same rule reaches trusts whose trustee could still pay principal back to the deceased spouse, and gifts made within one year of death above the annual gift-tax exclusion. A completed transfer older than one year, with nothing kept back, generally stays out.

Assets Titled in Someone Else’s Name

Property the deceased spouse transferred to a child, business partner, or other person before death is no longer part of the estate. The surviving spouse has no automatic claim to assets the deceased spouse gave away during life. Section 732.2035 pulls gifts made within one year of death back into the elective estate. Tuition and medical payments and the first annual-exclusion amount given to each person are excluded.

How to Ensure the Surviving Spouse Is Protected

The most reliable way for a surviving spouse to inherit everything is to hold assets so they pass outside of probate entirely. That means holding the home and financial accounts as tenants by the entirety and naming the spouse as beneficiary on retirement accounts and life insurance policies. A living trust that names the spouse as primary beneficiary does the same for the assets the trust holds. When every asset is titled or designated this way, nothing is left in the probate estate for the intestate rules or a will to divide.