A surviving spouse in Florida does not automatically inherit everything. Whether a spouse automatically inherits everything in Florida depends on three things: whether there are children from outside the marriage, whether the deceased left a will, and how each asset was titled. The law tilts strongly in the spouse’s favor, guaranteeing at least a substantial share in almost every scenario, but “everything” is only the default in specific circumstances.
When There Is No Will
Florida’s intestacy statute controls when someone dies without a valid will, and the surviving spouse’s share turns on one question: are there descendants from outside the marriage?
The spouse inherits the entire estate in two situations. The first is when the deceased left no living descendants at all. The second is when every descendant of the deceased is also a descendant of the surviving spouse, and the surviving spouse has no children from another relationship.1Justia. Florida Code 732.102 – Spouse’s Share of Intestate Estate
The share drops to half whenever children from outside the marriage exist. That covers two situations: the deceased has descendants who are not descendants of the surviving spouse, or the surviving spouse has descendants who are not descendants of the deceased. In either case, the surviving spouse gets 50% and the deceased’s descendants split the other 50%.1Justia. Florida Code 732.102 – Spouse’s Share of Intestate Estate
This is the rule blended families miss most often. A couple married for decades, with no children together but where one spouse has adult children from a prior marriage, triggers the 50/50 split. It does not matter how long ago the earlier relationship ended or how close the stepchildren are to the surviving spouse.
When There Is a Will
A will does not give a Florida resident unlimited power to cut out a spouse. Two doctrines protect a surviving spouse from disinheritance.
The Elective Share
Every surviving spouse in Florida has the right to claim 30% of the deceased spouse’s “elective estate.”2Florida Senate. Florida Statutes 732.201 – Right to Elective Share The elective estate is broader than the probate estate. It also includes assets the deceased transferred or controlled outside probate, such as interests in revocable trusts, jointly held property, and life insurance policies with a cash surrender value. The wide net exists to stop someone from shifting assets out of probate before death just to shortchange the spouse.
The election is not automatic. The surviving spouse has to file it with the probate court within the earlier of six months after being served with the notice of administration or two years after the date of death.3Justia. Florida Code 732.2135 – Time of Election; Extensions; Withdrawal Missing the deadline forfeits the right. If the surviving spouse is incapacitated, an attorney-in-fact or guardian of the property can file on their behalf.
Filing only matters when the will or trust leaves the spouse less than 30% of the elective estate. If the plan already gives the spouse more, there is no reason to elect.
The Pretermitted Spouse
A different rule applies when someone marries after signing their will and never updates it. If the will does not mention the new spouse at all, Florida treats them as a “pretermitted spouse” and awards them the share they would have received under the intestacy rules, as if no will existed.4Justia. Florida Code 732.301 – Pretermitted Spouse
The protection does not apply if the spouse waived their rights in a prenuptial or postnuptial agreement, if the will already provides for the spouse, or if the will expressly states an intention not to provide for a future spouse.4Justia. Florida Code 732.301 – Pretermitted Spouse
The Homestead Rule
Homestead is where Florida inheritance law gets genuinely restrictive. The Florida Constitution prohibits a homeowner from leaving their primary residence to anyone other than a surviving spouse or minor child. The only clean exception: the home can be left entirely to the spouse when no minor child survives.5FindLaw. Florida Constitution 1968 Revision Art X Section 4
When both a surviving spouse and descendants exist and the homestead was not validly devised, the surviving spouse receives a life estate in the home, with the remainder vesting in the deceased’s descendants. A life estate lets the spouse live there for life but not sell or mortgage the property without the remainder holders’ cooperation.6The Florida Legislature. Florida Statutes 732.401 – Descent of Homestead
Florida offers an alternative. Rather than the life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half going to the deceased’s descendants.6The Florida Legislature. Florida Statutes 732.401 – Descent of Homestead That gives the spouse an ownership stake they can sell, but it also makes the descendants immediate co-owners.
When the deceased leaves no descendants, the spouse inherits the homestead outright, will or no will.
Exempt Property and Family Allowance
Two additional statutory benefits sit on top of whatever else the surviving spouse inherits, and both are shielded from the deceased’s creditors.
Exempt property includes household furniture, furnishings, and appliances in the deceased’s home up to a net value of $20,000, up to two motor vehicles that were regularly used by the family, and any qualified tuition programs authorized under federal law.7Justia. Florida Code 732.402 – Exempt Property These items pass to the surviving spouse regardless of what the will says and regardless of what creditors are owed.
The family allowance is a separate cash payment of up to $18,000 from the estate to support the surviving spouse and any dependents the deceased was obligated to support during probate.8Florida Senate. Florida Code 732.403 – Family Allowance The court can order it as a lump sum or in installments, and it takes priority over general creditor claims.
Assets That Skip These Rules Entirely
A large share of most couples’ wealth never enters probate and is not touched by intestacy or the elective share. These non-probate assets transfer directly based on how they are titled or who is named as beneficiary.
Real estate held as tenants by the entirety is the most common example for Florida married couples. When one spouse dies, the deceased spouse’s interest terminates by operation of law and the surviving spouse becomes the sole owner. No probate is needed.9The Florida Bar. Turning Straw Into Gold: A Comprehensive Guide to Tenants by the Entirety in Florida Property acquired in both spouses’ names in Florida is presumed to be held as tenants by the entirety unless stated otherwise. Bank and investment accounts titled as joint tenants with right of survivorship work the same way.
Beneficiary designations control other major categories:
- Life insurance proceeds go directly to the named beneficiary.
- Retirement accounts such as 401(k)s and IRAs pass to the designated beneficiary. A surviving spouse who inherits a retirement account can roll it into their own IRA, an option non-spouse beneficiaries do not have.10Internal Revenue Service. Retirement Topics – Beneficiary
- Payable-on-death bank accounts and transfer-on-death brokerage accounts go directly to the named person.
- Assets held in a revocable living trust are distributed under the trust document, bypassing probate.
Because these assets pass outside probate, a will has no effect on them. If a deceased spouse’s will leaves everything to the surviving spouse but a $500,000 life insurance policy still names an ex-spouse as beneficiary, the ex-spouse gets the proceeds. Beneficiary designations need to stay current.
Debts of the Deceased Spouse
Inheriting from a spouse does not mean inheriting their personal debts. A surviving spouse is generally not responsible for the deceased spouse’s individual obligations unless the surviving spouse co-signed the loan, was a joint account holder on the credit card, or a specific law imposes liability.11Consumer Financial Protection Bureau. Am I Responsible for My Spouse’s Debts After They Die? Florida is not a community property state, so the broad rule that spouses share responsibility for marital debts does not apply here.
The estate is responsible. Creditors can file claims during a window that is generally three months after the first publication of the notice to creditors or 30 days after the personal representative serves notice directly on a known creditor, whichever comes later.12Florida Senate. Florida Code 733.702 – Limitations on Presentation of Claims If the estate cannot cover its debts, certain claims go unpaid. Exempt property and the family allowance stay protected even when the estate is insolvent.
Debt collectors may contact a surviving spouse acting as personal representative to discuss the deceased’s debts, but they cannot suggest the spouse is personally liable unless the spouse actually co-signed or guaranteed the debt.11Consumer Financial Protection Bureau. Am I Responsible for My Spouse’s Debts After They Die?
Prenups and Postnups Override the Defaults
Every spousal protection above can be waived by written agreement. Florida law allows a spouse to give up rights to the elective share, the intestate share, the pretermitted share, the homestead protection, exempt property, and the family allowance, either individually or all at once.13Florida Senate. Florida Code 732.702 – Waiver of Spousal Rights
A waiver signed before the marriage does not require financial disclosure. One signed after the marriage does. Either way, the agreement must be in writing and signed by the waiving party in the presence of two subscribing witnesses.13Florida Senate. Florida Code 732.702 – Waiver of Spousal Rights A waiver using broad language like “all rights” is treated as a complete waiver of every spousal entitlement unless the agreement says otherwise.
These agreements come up most in second marriages where both spouses have children from earlier relationships and want their own children to inherit specific assets. Without a waiver, the elective share and homestead rights can override the deceased’s intentions no matter what the will or trust says.