Rights of Surviving Spouse

Sometimes someone dies and the surviving spouse discovers that the Will or Trust of the deceased spouse leaves out the surviving spouse or grants only a token share. Under Florida law, a surviving spouse is granted a variety of rights with regard to the estate of the deceased spouse which rights have priority over the provisions of a Will or Trust in conflict with such rights. These rights can be waived or modified in either a pre- or post-marital agreement, but otherwise cannot be denied to the surviving spouse. These rights include the right to claim exempt property, an elective share, a pretermitted spouse's share, a family allowance, and homestead rights.

Exempt Property - Florida law entitles a surviving spouse to claim up to two automobiles owned by the decedent and used for personal use, and household furnishings, furniture, and appliances up to a value of $20,000. This property is also free from the claims of creditors of the estate of the deceased spouse.

Elective Share - An elective share is the right of the surviving spouse to take a share of the deceased spouse's entire estate, including retirement funds and insurance policies, equal to 30 percent of the entire elective share estate (less property received), even if the Will or Trust leaves the surviving spouse less. The assertion and calculation of the elective share is a complex legal matter and should not be attempted without the assistance of an attorney versed in this law.

Pretermitted Spouse - If a spouse dies and had a Will made prior to the marriage which does not include the new spouse, then the surviving spouse is deemed a pretermitted spouse and is entitled to a share of the deceased spouse's estate equal to a spouse's intestate share under Florida Statutes, which is approximately one-half.

Family Allowance - A surviving spouse is entitled to seek an award of money called a family allowance up to a maximum of $18,000 from the deceased spouse's estate for support during probate administration.

Homestead - This is one of the most important rights of a surviving spouse. If a spouse dies and owns a home in his or her sole name used as the primary residence, the surviving spouse is granted certain rights in that property even though his or her name is not on the title. What interest in that property to which the surviving spouse is entitled will depend on various factors. It could range from a life estate (right to live on the property for the surviving spouse's remaining life), to the entire ownership. Also, sometimes the surviving spouse must make an election as to what interest he or she wants to take. There is a deadline for making such election.

Other Rights - There are other possible rights a surviving spouse may have. For instance, a surviving spouse may be entitled to benefits under an employer-furnished pension or retirement plans, life insurance, and annuities.

Spousal Rights - These rights granted to a surviving spouse are not dependent upon anything other than the person being legally married to the decedent at the time of death. Unlike dissolution of marriage, the length of the marriage makes no difference. You can be married a week or 50 years, and the surviving spouse's statutory rights are the same.

Divorce - An interesting corollary to the rights of a surviving spouse is what happens when a divorce occurs. Upon divorce, the former spouses are automatically, by law, removed as beneficiaries of each other's Will and certain financial assets.

The laws regarding the rights of surviving spouses are complicated and interrelated. Determining how they apply in a specific case requires the assistance of a knowledgeable and experienced probate attorney. If you have questions or concerns regarding your rights as a surviving spouse, call probate attorney Eric S. Mashburn.