Surviving Spouse’s Rights - Elective Share

A surviving spouse is required to receive certain statutory amounts and allowances from the deceased spouse’s estate. If the decedent did not provide the statutory minimum, their spouse is entitled to claim certain rights. The rights may be waived, wholly or partly, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The waiver can be signed before or after marriage, and are most commonly seen in the form of prenuptial and postnuptial agreements. In the absence of a valid agreement waiving these rights, the Personal Representative or Trustee will need to determine if the surviving spouse will elect to claim the statutory entitlements. The most significant rights include the elective share and the homestead property.

The spouse has a right to a 30 percent share of the elective estate of the decedent. The elective estate includes assets subject to probate and certain assets passing outside of probate, such as those payable on death to a beneficiary and those assets in a revocable Trust.

There are very strict rules regarding the devise of homestead property if a decedent is survived by a spouse or minor children and the property is not owned as tenants by the entireties or as joint tenants with rights of survivorship. If the homestead was not devised as authorized by law and the constitution, the spouse has two options. The standard option gives the surviving spouse a life estate in the homestead property with the remainder interest vesting in the decedent’s descendants. With a life estate, the surviving spouse has the right to use or occupy the real property for the remainder of their life. In lieu of a life estate, the second option allows the surviving spouse to elect to take an undivided one-half (1/2) interest in the homestead property, as a tenant in common, with the remaining undivided one-half (1/2) interest vesting in the decedent’s descendants.

The paragraphs above are a brief description of two of the elections that may be exercised. Every case is different and there are many factors that need to be considered when the surviving spouse has not received the statutory amounts. Contact a licensed Florida attorney to discuss the time limits and requirement involved.

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