Does a Spouse Automatically Inherit Everything in Florida?

The short answer is: it depends. A surviving spouse in Florida does not automatically inherit everything. What the spouse receives depends on whether the deceased spouse had a will, whether the couple had children from other relationships, how assets were titled, and whether any assets pass through beneficiary designations rather than probate.

Florida law gives surviving spouses stronger inheritance protections than most states, but those protections vary 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. Understanding which rules apply to which assets is the key to knowing what a surviving spouse actually receives.

Assets That Pass Automatically to the Surviving Spouse

Several categories of assets bypass probate entirely and transfer to the surviving spouse by operation of law, regardless of what any will says.

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 can reach these 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 bank’s agreement provides otherwise.

Beneficiary designations. Life insurance policies, retirement accounts (IRAs, 401(k) plans), annuities, and payable-on-death bank accounts pass to whomever 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 and the spouse receives nothing from them.

These transfers happen outside of probate, usually within days or weeks. They are not affected by the deceased spouse’s debts, and they are not subject to the intestate succession rules described below.

What Happens When There Is No Will

When a Florida resident dies without a valid will, the estate is distributed according to the state’s intestate succession rules under Florida Statute § 732.102. The surviving spouse’s share depends on whether the deceased spouse had children from another relationship.

If all children are children of both spouses (or there are no children). The surviving spouse inherits the entire probate estate. This is the most common scenario for couples in a first marriage with shared children.

If the deceased spouse had children from a prior relationship. The surviving spouse receives half of the probate estate. The other half passes to the deceased spouse’s children, divided equally among them. This split applies even if the surviving spouse and the deceased spouse also had children together.

If the surviving spouse had children from a prior relationship but the deceased spouse did not. The surviving spouse still receives only half. Florida treats this scenario the same as when the deceased spouse had children from another relationship.

The critical point is that “probate estate” means only 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 Statute § 732.2065 gives a surviving spouse the right to claim 30% of the “augmented estate.” The augmented estate includes not only probate assets but also certain trust assets, joint accounts, beneficiary designations, 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% under the will can file an election with the probate court within six months of receiving notice of the estate’s administration.

Exempt property and family allowance. In addition to the elective share, the surviving spouse is entitled to household furniture and furnishings up to $20,000 in value and all automobiles held in the deceased spouse’s name that were regularly used by the spouse or family. The surviving spouse can also receive a family allowance of up to $18,000 to cover living expenses during probate. These amounts come off the top before other distributions.

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 receives an intestate share of the estate unless a prenuptial agreement provides otherwise or the will expressly states an intention not to provide for a future spouse.

Homestead Property Follows Its Own Rules

Florida’s constitutional homestead protections create a separate set of inheritance rules that override both wills and intestate succession.

If the deceased spouse owned homestead property and is survived by a spouse and children, the surviving spouse receives a life estate in the home (the right to live there for life), while the children receive the remainder interest. The surviving spouse can elect to take a 50% undivided interest as a tenant in common instead of the life estate, but must file this election within six months of the owner’s death.

If there are no surviving children, the surviving spouse inherits the homestead outright.

The homestead cannot be devised away from the surviving spouse by will. Even if the will leaves the home to someone else, the surviving spouse retains rights to the property. These restrictions create significant complications for blended families, which is why many married couples hold their home as tenants by the entirety so it passes automatically to the surviving spouse without triggering the life estate and remainder framework.

Prenuptial and Postnuptial Agreements

A valid prenuptial or postnuptial agreement can change all of the default rules described above. A spouse can waive the elective share, waive homestead rights, waive the right to serve as personal representative, and agree to accept specific assets or amounts in place of the statutory protections. Florida courts enforce these agreements as long as they meet the requirements of the Florida Uniform Premarital Agreement Act, including full financial disclosure by both parties at the time of signing.

Common Situations Where the Spouse Does Not Get Everything

Several common scenarios result in the surviving spouse receiving less than the full estate.

Blended families

When either spouse has children from a prior relationship, the surviving spouse’s share of probate assets is reduced to 50% under intestate succession. Even with a will, the deceased spouse cannot leave the surviving spouse less than the 30% elective share without a valid waiver.

Outdated beneficiary designations

A retirement account or life insurance policy still naming an ex-spouse will pay out to the ex-spouse, not the current surviving spouse. Florida law does not automatically revoke beneficiary designations upon divorce for all asset types. Updating beneficiary designations after marriage is one of the most important and most commonly overlooked steps in estate planning.

Assets in an irrevocable trust

Property transferred to an irrevocable trust during the deceased spouse’s lifetime may not be part of the probate estate. Depending on when the transfer occurred and the terms of the trust, these assets may also fall outside the elective share calculation.

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, though fraudulent transfers made to defeat the elective share can be challenged.

How to Ensure the Surviving Spouse Is Protected

The most reliable way to ensure a surviving spouse inherits everything is to structure assets so they pass outside of probate entirely. This means holding the home and financial accounts as tenants by the entirety, naming the spouse as beneficiary on all retirement accounts and life insurance policies, and funding a living trust that names the spouse as the primary beneficiary. A comprehensive estate plan that coordinates all of these elements avoids the intestate succession rules, avoids probate delays, and ensures the surviving spouse receives exactly what the couple intended.

Does a surviving spouse have to go through probate?

Not for assets that pass outside of probate. Tenancy by the entirety property, jointly held accounts with right of survivorship, beneficiary designations, and assets in a living trust all transfer without probate. Only assets owned in the deceased spouse’s name alone require probate.

Can a spouse be disinherited in Florida?

Not entirely. Even if the will leaves nothing to the surviving spouse, the spouse can claim the elective share of 30% of the augmented estate. The only way to fully waive this right is through a valid prenuptial or postnuptial agreement.

Does the surviving spouse inherit the house?

It depends on how the home is titled. If held as tenants by the entirety, the surviving spouse inherits automatically. If titled in the deceased spouse’s name alone, the homestead descent and distribution rules apply, which may give the spouse only a life estate if there are surviving children.

What if my spouse dies and the will leaves everything to the children?

The surviving spouse can file an elective share claim within six months to receive 30% of the augmented estate. The spouse also retains homestead rights regardless of the will’s terms and is entitled to exempt property and the family allowance.