Some new clients have told me they have not made a will or a testamentary trust because they had assumed their spouse would automatically inherit all their individual property. These people misunderstand Florida law. Florida law gives a surviving spouse rights in some, but not all, of a decedent’s property.
A surviving spouse will inherit by operation of law, automatically and immediately, any property titled jointly with rights of survivorship or as tenants by entireties. Jointly owned assets are not subject to probate.
Like other joint property, homestead property owned jointly with a spouse will automatically pass to the surviving spouse. Florida law gives a surviving spouse at minimum a life estate in a homestead property titled solely in the name of the deceased spouse. A life estate gives the surviving spouse the right to live in the homestead for the remainder of their life.
The surviving spouse also can take an “elective share” of a decedent’s property titled in his own name. The elective share is 30%. Almost all of the decedent’s assets are subject to elective share option. A surviving spouse gets to choose whether to take what they are granted under the decedent’s will or trust or take their elective share.
All property owned by a decedent in their own name and not used to fund a surviving spouse’s elective share may be devised to whomever the decedent names as heirs in their will or testamentary living trust.
Last updated on November 1, 2021