Florida Trust & Probate Attorneys Blog
Understanding Spousal Rights Under Florida Probate Law:
What You Need to Know
By Jacqueline R. Bowden Gold, Weston Probate Attorney
Florida probate law provides specific protections for legally recognized spouses upon the death of their partner. However, it’s important to note that Florida does not recognize common law marriage, meaning individuals who have lived together for years without being legally married have no automatic spousal rights under probate law. This article covers essential rights afforded to surviving spouses, such as the elective share, homestead rights, exempt property, family allowance, and intestate succession—and clarifies the limitations for unmarried partners.
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- Elective Share
The elective share allows a legally married surviving spouse to claim 30% of the “elective estate,” including certain non-probate assets. This right ensures that a spouse receives a minimum portion of the estate, regardless of the deceased’s will. However, this right applies only to legally recognized spouses.
Key Points:
- Elective Estate: Includes probate and certain non-probate assets.
- Filing Deadline: Six months from notice of administration or two years from the date of death.
- Common Law Limitation: Only legal spouses qualify; common law partners are excluded.
- Homestead Rights
Florida provides homestead protections, allowing a legally married surviving spouse to remain in the primary residence for life, with ownership transferring to minor children upon the spouse’s death, see F.S. 733.608. Homestead rights prevent the forced sale of a family home to satisfy creditors. However, these protections are limited to legal marriages. Unmarried partners or those in common law marriages do not qualify for homestead rights, meaning they could potentially face difficulties in retaining the home if it was solely in the deceased partner’s name.
Key Points:
- Life Estate: Applies to legally married spouses only.
- Transfer to Children: Ensures minor children inherit upon the surviving spouse’s passing.
- Exclusion of Unmarried Partners: Common law or cohabiting partners have no homestead rights. This is important for couples who chose not to marry and property is titled under one partner’s name only.
- Exempt Property
Pursuant to Florida Statute 732.402 certain assets—such as household furniture (up to $20,000), personal vehicles, and college tuition plans—are protected as exempt property, passing automatically to a surviving spouse or minor children. This property is not subject to creditor claims, ensuring that essential items remain with the family.
Key Points:
- Household Furniture: Valued up to $20,000.
- Vehicles and Tuition Plans: Automatically pass to legal spouses and minor children.
- Common Law Restriction: Common law partners cannot claim exempt property.
- Family Allowance
The family allowance provides up to $18,000 in temporary financial support to a legally married spouse and minor children during probate. This allowance ensures immediate financial stability for basic needs until probate resolves. For further information see F.S. 732.403.
Key Points:
- Amount: Up to $18,000 as interim support.
- Availability: Only for legal spouses and minor children.
- Ineligibility for Unmarried Partners: Unmarried, long-term partners do not qualify.
- Intestate Succession
If a person passes away without a valid will, Florida’s intestate succession laws dictate how their estate is distributed, giving priority to surviving spouses. Here’s how intestate succession applies:
- No Children or Only Children with the Surviving Spouse: The spouse inherits the entire estate.
- Children from a Previous Relationship: The spouse and children share the estate, with the spouse receiving at least half.
For those in a common law marriage or long-term relationship without legal recognition, intestate succession does not apply. This means that if an unmarried partner dies without a will, the surviving partner has no automatic spousal rights under Florida law. The estate instead goes to legal family members according to Florida’s intestacy statutes.
Key Points:
- Full Inheritance: Legal spouses inherit if there are no other children.
- Shared Inheritance: For legal spouses, shared with children from prior relationships.
- No Rights for Common Law Partners: Unmarried partners have no claim under intestate succession.
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Florida and Common Law Marriage: Important Considerations
Florida does not recognize common law marriage unless it was established before 1968 or in another state that recognizes it. For couples in a long-term relationship without legal marriage, this means:
- No Automatic Spousal Rights: No spousal inheritance, homestead rights, or family allowance.
- Importance of Estate Planning: Unmarried couples should have wills and other estate planning documents to protect each other’s interests.
- Seek Legal Guidance: Consulting a Weston probate attorney is crucial to ensure legal protection and proper documentation for intended beneficiaries.
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Conclusion
Florida probate law offers significant protections for legally married spouses, ensuring they receive fair access to the deceased’s assets but excludes long-term partners who are not legally married. Without a valid marriage, partners have no automatic claims to property or assets, highlighting the importance of thorough estate planning. Understanding these distinctions and planning ahead is essential for unmarried couples in Florida who wish to secure each other’s financial future.
This article is intended for informational purposes only. It is important you consult with an experienced probate attorney. For more information contact attorney Jacqueline R. Bowden Gold at (305) 556-5209 or by email JBowden@raricklaw.com.