The best way seniors and anyone writing a will can determine how much their spouse gets when they die are to prepare a will. The will can provide for the spouse and provide for any children from any marriage. If a husband or wife dies and there is no will, then surviving spousal rights are determined by the intestate laws of Florida. These laws are outlined in Florida statute 732.102.
Generally, all assets the decedent owned are transferred according to the intestate succession laws except for property that doesn’t have to go through probate. Examples of non-probate property include:
- Property that’s part of a living trust
- The proceeds of life insurance
- Retirement accounts payable to a specific person or organization
- Accounts that are payable on death
- The property the decedent owned as tenants by the entirety or as joint tenants
- Other items, an experienced Vero Beach or Sebastian wills and trust lawyer can explain
Surviving spousal rights and intestate succession
With some exceptions, the surviving spousal rights to probate assets when there is no will are the following people – in the following order:
- Spouse with no children or descendants. The spouse gets everything. Descendants generally mean children, grandchildren, and great-grandchildren.
- Spouse and descendants – where the descendants are the children of both spouses (the decedent didn’t have children through anyone other than the spouse). Here the spouse also gets everything.
- Spouse and descendants – where there’s at least one descendant (normally one child) whose parents aren’t both the decedent and the surviving spouse. The spouse is entitled to ½ of the decedent’s intestate property. Your descendants are entitled to the other ½.
- Example 1. Sue and John have two children, Joe and Sally, of their own. John has a child, Michael, from another marriage. When John dies, Sue gets ½ the probate property. The three children split the other ½.
- Example 2. Sue and John have the same two children. Sally has a child Mary from another relationship. On John’s death, Sue gets ½. Joe and Sally split the other ½.
Your wills and trusts lawyer can explain what happens if there is no surviving spouse but there are other relatives.
Additional surviving spousal rights
Florida provides additional protections for a surviving spouse.
Florida law allows a surviving spouse the right to elect against the will. If a spouse disinherits a surviving spouse, the surviving wife or husband can elect 30% of the estate assets. This includes more than just the property that passes through probate. It also includes:
- Property that was “payable on death”
- Property owned by the spouses as joint tenants with right of survivorship
- The net value of any insurance policy
- With some exceptions, property the spouse transferred within the year before death
Florida’s Constitution and Florida statute 732.401 are additional surviving spousal rights. The state Constitution and state law provide that homestead property (essentially the marital home) can’t be devised when a surviving wife or husband is alive or there is a minor child. if no minor child is living, then the property can be devised to the spouse. If there is an improper devise of the homestead property, the intestate laws will determine how the homestead property is devised.
If a child is born after a decedent dies (he/she was conceived while the decedent was living), the posthumous child inherits as if he/she had been born while the decedent was living.
Immigration status does not affect the right to inherit. A parent or spouse can inherit, for example, even if they are not U.S. citizens.