Spousal rights in an estate

In Florida, spouses have default rights under each other’s estates. Amongst other things, this means that you can’t unilaterally disinherit your spouse. Other than rights to the homestead (which we’ll address below), the major election was historically known as a “pretermitted spouse” or the intestate share. If your spouse didn’t leave you at least half of his or her probate estate in their Will, this election allowed you to “elect” to receive half regardless of how much the Will left to you. This can be changed via a pre-nuptial or post-nuptial agreement, which we’ll address in another post.

This right had its limits though – mostly related to the fact that it was tied to the probate estate – which has a lot of exclusions. The probate estate is limited to only those assets that are passing under a Will (or intestacy if there is no Will) through the probate court and probate process. If you have assets in a revocable trust – those are not part of your “probate estate”. If you add a beneficiary to an account (e.g. – a checking or retirement account), then that asset is not part of your “probate estate”. Jointly owned accounts? Also not probate estate assets. That’s because in all three of those examples – the probate court (via the Last Will and Testament) is not what controls where those assets go if you pass away. So over time, savvy estate planners started working around this right of a pretermitted spouse by making the probate estate as small as possible using these, and other, techniques. So while your spouse may still have the right to claim half the probate estate – if the probate estate was very small (or even zero) – it wouldn’t do them much good, and frustrated the intent of the legislative drafters – which is to prevent a spouse from being left “high and dry” without their knowledge and consent.

So more recently Florida law added an “elective share” right for a surviving spouse. The elective share is generally 30% of the “elective estate” (there are elective share trusts which we’ll address in another post). And while 30% sounds worse – it may end up being a lot better for the survivor. The elective estate is much bigger and broader than the probate estate, and includes the entire probate estate, assets you’ve put in a revocable trust, and most assets with a beneficiary designation or joint owner. Because the elective estate includes the entire probate estate (plus more things) – the elective estate is always at least as big as the probate estate. So with the elective share a surviving spouse can choose between 50% of one pie or 30% of a potentially bigger pie.

In addition to your rights to a portion of the estate, a surviving spouse must be given at least a life estate in the decedent’s homestead. This was historically to prevent spouses (at the time often women) from being homeless upon the death of the land-owning husband. So if a surviving spouse (and there are no minor children) did not get a life estate in the estate plan, they automatically receive a life estate (unless the deceased spouse didn’t have kids in which case they receive the whole homestead interest). So now the surviving spouse has a place to live for the rest of their life. Not bad right?

Well – maybe. The remainder interest (essentially where the property goes after you pass away) passes to the decedent’s kids. The life estate holder (the surviving spouse) is responsible for some of the upkeep/repair/maintenance of the house, and the remaindermen (the kids) are responsible for the rest. If you have the same kids or get along with each others kids that’s probably no problem. But its all too common for one spouse’s kids to hate their dad’s new wife (or their mom’s new husband, but the former seems more common). So imagine this scenario – you’re newly widowed, living in a house you can’t sell, and have to go to children who hate you and ask them to buy a new roof for a house they can’t use or sell for years (or decades)! Imagine how willing they’ll be to pay for that! So while they’re delaying In the meantime, the spouse is now living in house without a proper roof (or worse). This is obviously not a livable situation for anyone.

In Florida there’s a workaround – and it allows the surviving spouse (or in some cases, their guardian) – to elect out of the life estate and instead receive a one-half interest in the property (with the descendants receiving the other half). This way – the spouse is on more “equal footing” with (usually the kids) and can even force the sale of the property via Partition. This allows the spouse to receive some value now and allows them to not be stuck in the residence or beholden to kids who may have no lost for them.

In addition to the above two rights/elections, a surviving spouse has a few more rights in an estate. They have the right to a spousal allowance, which is an amount (up to $18,000) needed for the spouse to carry on living and paying their bills while the administration of the decedent’s estate is ongoing. They have the right to ‘exempt property’ – which will be most commonly seen as the furniture and furnishings in the primary residence and two vehicles. And if the decedent did not have a Will, the surviving spouse also has the right of preference to serve as the personal representative of the Estate.

Each of these elections have deadlines, and each deadline is triggered by something that happens during the probate process except for one – the election to take one-half of the homestead. That must be done within six months of the person’s passing, or else the surviving spouse can only have the life estate. This deadline is often missed (though rarely twice) because a lot of probate attorneys assume that all the deadlines, including this one, is tied to the probate process. If you’re a surviving spouse it is important to hire an attorney who practices this law every day and knows what to watch out for so that your rights are protected and deadlines aren’t missed.

Disclaimer* - this article uses generalities more than some others will. Your lawyer (including Bruce Estate Law) can give you specifics about rights and deadlines and how they apply to your case.