Probate law can get very technical. In short, the surviving spouse is the most protected individual by Florida probate courts.
Navigating difficult circumstances surrounding the death of a loved can leave surviving spouses confused and uninformed of their rights. It is important that surviving spouses understand their rights in the state of Florida.
Terms in Probate as They Relate to Surviving Spouse Rights in Florida
Laws pertaining to wills and inheritance can be quite confusing. We take a look at what the most important terms mean here:
Probate: Probate law is the field of law where wills, estate and inheritance fall under.
Intestacy: When someone dies without a will, they are said to have passed away intestate.
Intestate Share: Certain people are automatically given a predetermined share of the deceased’s estate when there is no will (intestate). As such, this share is the intestate share. This is most relevant to surviving spouses and direct descendants.
Decedent: This is another legal term for the deceased, or the one that passed away. This is the person whose estate will be handed down to those that have rights to inherit it.
Estate: This is basically the sum value of assets the decedent left behind when they died.
Homestead: A homestead is the house and property where the decedent lived before they passed away. It is only a homestead if the decedent owned it at the time of death.
Elective Share: In the state of Florida, if the surviving spouse was disinherited, the surviving spouse may still claim their rightful elective share, which would be a predetermined formula by the courts to properly divide the estate. When claiming an elective share, it is very important to be working with a probate attorney. Elective share would not usually apply in the event of a prenuptial or postnuptial agreement.
Exempt Property: Certain items of the estate can be placed under exempt property. These items are usually pieces of furniture and vehicles that the surviving spouse shared with the decedent before they died.
Pretermitted Spouse: If the decedent drafted a will before the marriage, the surviving spouse is a pretermitted spouse.
Individuals cannot write their spouse out of a will (this is not the same with divorce, as they would no longer be a surviving spouse). Neither can intestate deaths put the estate up for grabs when there is a surviving spouse.
Typically, questions regarding probate law for surviving spouses occur when there was no will (intestate) or there was an attempt to write the spouse out of the will. In either case, a probate attorney needs to guide the surviving spouse through the complexities.
If there was no will and no children of the decedent, the surviving spouse gets it all (except in the most unusual cases). This is an intestate nonnegotiable.
In a non-intestate situation where the surviving spouse had been eliminated from the will, elective share comes to the rescue to protect the surviving spouse.
If there were children of the decedent, the surviving spouse splits the estate in half between him or her and the remaining descendants. Again, this is in the event of intestate. The surviving spouse is entitled to at least 50% of the estate in this case.
This would also hold true if the surviving spouse had children from a previous marriage. The decedent’s stepchildren would not be entitled to a portion of the decedent’s estate, and neither would it increase the surviving spouse’s share.
As a final note, a pretermitted spouse is entitled to inheritance just as a surviving spouse in the case of intestate.