Homestead and Elective Share if Your Spouse Dies First

Senior old man elderly examining and checking last will and testament

Enforcing Your Spousal Elective Share

It is generally assumed that when one spouse dies, the widow or widower would inherit the couple’s shared assets and would support the rest of the family. While this is often the case, every family is different and sometimes a person’s Will leaves a widowed spouse without the means to support themselves. In those cases, the surviving spouse may need to enforce their spousal elective share and homestead exemption to protect their share of the life they built with their spouse.

The Spouse Inherits When There Is No Will in Florida

What happens when you die without a will in Florida depends on who is in your family at the time -- specifically whether you have children or grandchildren. Florida laws for “intestate succession” say that the surviving spouse’s share of the estate of the deceased spouse (the decedent) depends on what descendants the deceased spouse had, and whether they are also descendants of the surviving spouse:

  • If there is no surviving descendant of the decedent, the entire intestate estate.
  • If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
  • If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
  • If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

This generally means that where all the children of the spouses are full siblings, the surviving spouse will receive the entire estate. But where the decedent had descendants and step-children or half-siblings are involved, the surviving spouse will only receive half the estate. (Adopted children count as children of their adopted parents, including in cases of step-parent adoption.) The remaining half will be divided equally between the deceased spouse’s descendants.

Florida Spousal Elective Share Can Override the Will

Intestate succession only applies when there isn’t a Will in place when someone dies. Generally speaking, a person can create a Will as part of an estate plan that directs who will receive their assets after they pass away. However, estate planning if you’re married is a little more complicated. The Florida spousal elective share protects the surviving spouse from being disinherited or left too small a share of the decedent’s estate. Any time a widow or widower believes their share of the estate is too small, they may elect to receive 30% of the “elective” estate instead. This overrides the Will but can be contested if:

  • The marriage was obtained through fraud, duress, or undue influence
  • The surviving spouse killed the deceased spouse

That 30% can be awarded in money assets or physical property, as long as the combined value adds up to the right amount. Under prior Florida law, when the surviving spouse exercised the elective share, they would forfeit the right to inherit under the will of the deceased spouse or to participate in distribution of intestate property. The law has since changed. Now the election simply sets a floor on the amount the surviving spouse receives from the decedent’s assets.

Homestead Exemption Protects the Family Home for the Surviving Spouse

Florida residents can also file for a homestead exemption as part of the probate process. Florida homestead exemption rules say that certain real property can be shielded from creditors and given to the surviving spouse or other family members. The Florida law on deceased debt applies to:

  • Property within a municipality: one piece of property up to one-half acre that was the residence of the owner or the owner’s family
  • Property outside a municipality: one piece of property up to 160 acres including all improvements on that property

The homestead exemption is a form of Florida asset protection. Rather than protecting surviving spouses against other beneficiaries, it is designed to prevent the family home from being sold to satisfy the debts the deceased accumulated during their lifetime.

Spousal Rights to Property Held in a Revocable Trust

It used to be, if a spouse really wanted to disinherit their spouse and leave their property to their children, pets, or charities instead, all they had to do was establish a trust. Under pre-1999 law, the Florida spousal elective share only included money and property passing through the decedent’s probate estate. Since trusts are separate legal entities, assets held in a revocable trust pass directly to the successor beneficiaries of the trust once the original beneficiary dies. Under the old law, that property was never probated, so the spouse’s elective share could never attach to the property. If your family is still operating under an old estate plan, it may assume these rules still apply, but they don’t.

Under the current law, a spouse can file a probate claim to collect his or her elective share from the probate estate of the deceased spouse, as well as from a variety of “non-probate” assets. The following is a non-exhaustive list of just some of the “non-probate” assets from which a surviving spouse can claim an elective share:

  • Accounts with rights of survivorship or “payable on death” provisions
  • Death benefits from retirement plans
  • Contents of a revocable trust
  • Life insurance policies
  • Certain transfers made within one year of decedent’s death

Even an irrevocable trust may be considered in calculating the elective share if it was established by the decedent with a retained right to income. However, most people use revocable trusts to maintain flexibility to pay for their own needs and desires during their lifetime. Even if the deceased spouse didn’t list his or her surviving spouse as a beneficiary to the trust, he or she can still take the trust to court to collect the 30% elective share.

Unfortunately, for some families, a loved one’s death can spark debates over how the surviving spouse can and should be provided for. Sometimes, it will be up to the Florida probate court to give the final answer. At Harrison Estate Law, P.A., our experienced estate and probate team can help you consider your options to enforce your spousal elective share and homestead exemptions. We will help you protect yourself from creditors, and from family members who seek to take advantage of your grief. Contact us here or call 352-559-9828 to get help today.