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Florida’s Protection of the Family

Estate Planning

Florida’s Protection of the Family after a Family members Death

In Florida, there are 5 distinct statutory/constitutional protections for surviving spouses and children. The law specifically provides for surviving spouses and minor children

Under the first protection: Elective Share, the law mandates a forced share of the estate for your surviving spouse. Specifically, in situations where a deceased spouse attempts to disinherit the surviving spouse from a will, the law dictates that the surviving spouse can take a force 30% of the entire estate.

This includes all assets that you had access to when the person was alive.The only requirements are that the decedent

  • Is a resident of the State of Florida, and
  • There was a valid marriage at the time of death, and
  • Did not have a pre/post nuptial agreement.

The second protection the law in Florida provides is: family support. This protection is not automatic; the surviving family members must elect for the allowance. The family support is designed to for families to request up to $18,000 of the estate while the court is settling the probate affairs.

In order to receive this allowance, any of the lineal family members that the deceased was obligated or actually supporting must file a request.

The third protection is: exempt property. This protection also requires the family to elect to take advantage of it. Furthermore, the property must be free from creditor’s claims and is not designated to go to someone outside the family. This protection exempts property of up to $21,000 worth of property and includes tangible personal property such as regularly used cars, tuition plans, and certain retirement plans. The surviving spouse receives priority for this protection; however, if the decedent does not have a surviving spouse or they do not file a request, then minor and adult children may file a request as well.

This must be done within 4 months of receiving a notice of administration.

Homestead Exception

Homestead protection, which is arguably the most important protection, is the fourth protection under the Florida Law. This is the only protection that is automatic. There are three different type of protections, which may overlap when you die:

  • For tax purposes
  • For creditors
  • For purposes of descent and devise.

For tax purposes, the property is reassessed for tax purposes and this protection caps the amount of taxes your homestead can go up per year: 3%.

For creditors, the creditor cannot take your property regardless of the worth.

For purposes of decent and devise, this protection aims to not leave your spouse or children homeless.

The law dictates that you cannot determine what happens with your property: your surviving spouse will receive a life estate, and any minor children will divide the remainder interest. In other cases if you have no surviving spouse, the law will still dictate that the minor children will get the home and divide it equally among them. However, if there is no surviving spouse and minor children, you can leave your homestead to others. Furthermore, the law is specific in what can qualify as a homestead. If your house is located within the city limits, while the size of the house doesn’t matter, only the first ½ acre will be protected. For rural properties, up to 160 acres will be considered for homestead purposes. This is one of the most important protections in Florida and occurs automatically, meaning nothing has to be filed or done to receive this right.

The last protection under Florida law for families is the pretermitted spouse or child. For this protection, the surviving spouse or child must request from the court not to follow the last will and testament and must be done within 90 days of receiving the notice of administration. This protection applies to specific situations when someone dies without a will and did not include either the spouse or child in the will. It is important to look at the intent of the will; however, this protection often applies when the marriage occurs or the birth of a child occurs after the will was created. The surviving spouse would receive either 50% or 100% of the probate estate.

  • If neither the decedent nor surviving spouse has another child outside their marriage, the surviving spouse inherits 100% of the estate.
  • If the decedent or the surviving spouse has another child from outside the marriage, the surviving spouse inherits 100% of the probated estate.

The law on wills, estates and homestead can be very complex. Make sure you engage an attorney in the preparation of these documents to insure your wishes are achieved. Call Lulich Attorneys and Consultants for any legal questions! Offices located Sebastian, Vero Beach, Florida. 772-589-5500

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