Florida law affords the surviving spouse of a decedent a variety of property rights. A brief description of these inheritance rights follows:
Right to exempt property. The surviving spouse is entitled to exempt property comprised of household furnishings, furniture and appliances up to a value of $20,000.00. What this means is that the spouse not only has an absolute right to possession of this property, but the property is also exempt from the claims of creditors of the decedent. Thus, even if the spouse that died owed money to someone, that person can’t be paid back out of this exempt property. In order to claim the exemption, the spouse must file a petition to determine exempt property in the probate proceeding within 4 months of receipt of the notice to creditors.
The spouse has the right two motor vehicles held in the decedent’s name and regularly used by the decedent’s family. These automobiles are also exempt from the claims of creditors upon the proper filing of a petition to determine exempt property.
Family allowance-The spouse is entitled to a reasonable maintenance allowance during the pendency of the probate case up to an amount of $18,00.00. The spouse must be a resident of Florida to qualify for entitlement to an order granting a family allowance. As with rights to exempt property, the spouse must file a petition to determine family allowance.
Homestead rights are not the subject of this article but of course the spouse has numerous rights regarding the homestead. A spouse can’t alienate (sell) the homestead without the other spouse joining in the conveyance and of course the homestead can’t be devised (give away at death through a will or trust) if the decedent is survived by a spouse or minor child, except that if there is no minor child, the property can be devised to the spouse. The spouse can’t even mortgage the homestead without the wife’s joining and execution of the mortgage.
Elective share- if a spouse is dissatisfied with the provisions in the will, he or she can petition for an elective share of the estate. Essentially, the elective estate consists of approximately thirty percent of the elective estate. The elective estate has been drastically expanded by statute and now includes a variety of property falling outside of the probate estate such as property held in revocable trusts and property held jointly with third parties and the decedent.
The rights of the surviving spouse under Florida law must always be considered by the estate planner. Issues related to divorce and waiver of these rights pursuant to a pre or post-nuptial agreement must also be properly identified. One of the major pitfalls for inexperienced practitioners is proper treatment of the homestead when a spouse or minor child is in play. Placing the homestead in a revocable trust when there is a spouse or minor child can also pose consequences. Consult with an estate planning attorney to assist you as the law regarding these issues can be challenging to navigate with or without competent professional legal advice.
