Florida Probate: Spouse and Surviving Children Protections

Florida Statutes protect the decedent’s spouse and certain surviving children from total disinheritance, even if the decedent’s will gives them nothing.


If the decedent owned real property, determined by the Court, to be there homestead the surviving spouse may have rights in the decedent’s homestead real property. Also available to a surviving spouse is the right to claim an “elective share” from the decedent’s probate estate. The elective share is defined as 30 percent of all of the decedent’s assets, including non-probate assets.


Florida Statutes also allow an allowance paid to the family to provide funds before the final distribution of asset of the estate, as well as rights in exempt property that are paid to them before the creditors of the estate are satisfied. A spouse may waive any rights to family allowance or spousal share if they signed a valid, enforceable pre-marital or post-marital agreement.


If after signing a will the decedent married, or had children, and if the decedent neglected to provide for the new spouse or children, the omitted family member is still entitled to a share of the decedent’s probate estate.


If you have questions concerning the existence of and enforcement of Florida statutory rights please give us a call for a complementary consultation.



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