Getting hitched in Florida has it’s advantages inside probate

Florida: A Safe Haven for Surviving Spouses in Probate

          Marriage is one of the most sacred and respected institutions in our society.  Both state and federal governments provide benefits to encourage marriage with beneficial incentives. Florida provides several benefits for surviving spouses as illustrated in Florida’s Constitution and Probate Code. This article reviews some of those benefits but is not an exhaustive list.


First, surviving spouses receive protection under Florida’s Homestead Exemption.  The Florida Constitution prohibits a decedent from freely devising his or her homestead, when the decedent is survived by a spouse or minor child. Art. X, § 4 (c), Fla. Const.  However, the decedent can devise a homestead to his surviving spouse if there is no minor child. § 732.4015 (1), Fla. Stat. (2010).  If a decedent tries to devise a homestead to someone other than a surviving spouse or minor child under a will, then the homestead property will be transferred to the decedent’s surviving spouse and the decedent’s descendants, with the surviving spouse receiving a life estate in the homestead and the descendants receiving a remainder, per stirpes at the decedent’s death.§ 732.401 (1), Fla. Stat. (2012).  Alternatively, “the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.”  § 732.401 (2), Fla. Stat. (2012).  To receive the homestead exemption, “an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode.”  In re Alexander, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).


Second, Florida grants surviving spouses a family allowance during administration.  § 732.403, Fla. Stat. (2001).  Administration, the distribution of a decedent’s estate, can be a lengthy process and surviving spouses may struggle financially without the income of the decedent spouse.  Under Florida Statute § 732.403, “if the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration.”  The maximum for this allowance is $18,000.  If the surviving spouse is alive, then the allowance goes to the surviving spouse.  However if the surviving spouse is not alive, then the allowance is paid to the lineal heirs or whoever’s care and custody they are in.


Third, Florida protects a surviving spouse when the decedent died without a will, intestate.  The surviving spouse will be entitled to either one half or the entire intestate estate depending on the circumstances. § 732.102, Fla. Stat. (2011).  For example, if the decedent spouse has no surviving descendants, then then surviving spouse receives the entire intestate estate.  §  732.102 (1), Fla. Stat. (2011). However, if the decedent spouse has descendants who are not lineal descendants of the surviving spouse, then the surviving spouse receives one-half of the intestate estate.  § 732.102 (3), Fla. Stat. (2011).   For distributions under other circumstances, see  § 732.102, Fla. Stat. (2011).


This article is intended to be a brief overview of Florida’s statutes pertaining to spousal protections.  Those interested in how the statutes will personally affect them should consult an attorney.  Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning needs.



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