In Florida, a spouse has the right to automatically inherit certain property from their deceased spouse, whether or not they are provided for in a will. A person cannot disinherit their spouse.
Some clients have told us that 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 inheritance 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.
Surviving Spouse Rights in Florida
A surviving spouse does not automatically inherit everything in Florida from their deceased spouse. Instead, the surviving spouse has the right to an “elective share.” An elective share is equal to 30% of all property titled in the name of a deceased spouse.
Almost all the decedent’s assets are subject to the elective share option. A surviving spouse gets to choose whether to take what they are set to receive 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.
What Happens to the House?
Like other joint property, homestead property owned jointly with a spouse will automatically pass to the surviving spouse.
If the home is titled only in the name of the deceased spouse, then the surviving spouse has a homestead right. Florida law gives a surviving spouse at minimum a life estate in the homestead property previously 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.
If the deceased spouse who owned the home was survived by a minor child, then the spouse (if any) gets a life estate with the remainder to the minor child. In other words, the surviving spouse can reside in the homestead for the duration of their lifetime. After their death, the child will own the house.
If there is a surviving spouse and no minor children, then the surviving spouse will inherit the home even if the deceased spouse attempted to leave the home to someone else in a last will and testament (so long as the surviving spouse did not sign a valid waiver of spousal rights).
Example of Surviving Spouse Rights
Jack and Jill have been married for 15 years and reside in Miami, Florida. Because this is a second marriage, they keep their assets in separate accounts. Jack also has children from a previous marriage for whom he wants to provide after his death.
Unfortunately, Jack passes away. His will states that his children are to inherit all of his assets. Jill was surprised and upset by this, as she had always assumed that she would inherit everything as Jack’s surviving spouse.
However, under Florida law, a surviving spouse does not automatically inherit everything. Instead, the surviving spouse has the option to claim an “elective share” of the deceased spouse’s estate, which 30% of the total value of Jack’s assets.
In this case, Jill decides to claim her elective share. She is able to receive 30% of the value of Jack’s assets, even though his will stated otherwise.
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