The state of Florida has specific statutes that protect a surviving spouse from being completely disinherited. A surviving spouse is entitled to be a part of the deceased spouse’s estate.

Below are several different entitlements for surviving spouses under different scenarios.


If a spouse dies without a will, his estate will pass through intestacy. If the surviving spouse is the decedent’s only survivor, or if all of the decedent’s children are also the children of the surviving spouse, he/she would be entitled to receive the entire estate. If the deceased spouse is survived by children from someone other than the surviving spouse, or if the surviving spouse has children from another person, the surviving spouse is entitled to one half of the decedent’s estate.

Elective Share

A surviving spouse may be entitled to receive an elective share of the deceased spouse’s estate. The elective share in Florida is 30 percent. The surviving spouse may make an election to receive his/her elective share if the deceased spouse’s will disinherited his/her, omitted his/her, or provided him/her with less than 30 percent of the decedent’s estate. A surviving spouse should consult an attorney to determine if he/she qualifies for an elective share.


A surviving spouse is entitled to receive an interest in a homestead shared with the deceased spouse, even if a will provided otherwise. If a homestead is left to someone other than a surviving spouse, he/she may take either a life estate in the property, with the remaining interest going to the decedent’s descendants, or he/she can elect to take a one half interest in the property as a tenant in common with the decedent’s descendants. A surviving spouse’s homestead rights must be made timely and according to Florida procedure.

Will Made Before Marriage

A will made before a marriage may exclude a spouse. In this case, the surviving spouse is considered to be “pretermitted” and may be entitled to a share of the decedent’s estate. Under Florida law, a pretermitted spouse is entitled to receive a share equivalent to the amount that he/she would receive if the estate passed though intestacy, less any property devised in a valid will. If the pretermitted spouse’s share falls below 30 percent, he/she may choose to take an elective share instead.

Family Allowance And Exempt Property

In Florida, a surviving spouse is entitled to a family allowance of up to $18,000. The allowance is intended to provide support for the decedent’s family during probate proceedings. The allowance is paid by the decedent’s estate. If a decedent has minor children who do not live with the surviving spouse, the allowance is divided accordingly. In addition to the family allowance, a surviving spouse is also entitled to certain exempt property. Exempt property includes up to $20,000 of household furniture, furnishings and appliances, and two motor vehicles (subject to restrictions). Any items specifically devised in a decedent’s will are not exempt.

More Questions? Contact My Office Today.

I am attorney Michael G. Horton, and I handle all matters relating to estate planning and administration, including the rights of surviving spouses’ transfer of spousal shares under Florida’s probate laws.

If you have questions or concerns about your rights as surviving spouse or the rights of your spouse in the event you pass away, I invite you to contact my office to schedule a free consultation.

From our offices in Clermont, I advise clients in probate and estate transfer matters throughout the Orlando metropolitan area and Central Florida.

Call 352-394-4008 today.

Contact My Office Today

Call my office at 352-394-4008 to arrange a free initial consultation. You can also send me an email by filling out my email contact form.

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