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Serving the Treasure Coast - Martin, Indian River, Okeechobee, and St. Lucie Counties
Law Office of Jason D. Berger, P.A.-Logo
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Rights of Surviving Spouse


Rights of Surviving Spouses

In-House Consultations

In-House Consultations

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Dealing with the death of your spouse is a difficult time for you and your entire family. Going through probate and the estate division process can make this time even more complex and stressful. According to Florida law, surviving spouses have certain rights to marital property after a spouse passes away, even if a will disinherits a spouse from those assets. Conflicts involving the rights of a surviving spouse arise when a will dictates a different allotment to a spouse than what the law provides. The Law Offices of Jason D. Berger can assist you in determining your rights as a surviving spouse to ensure you receive the correct entitlements to your estate after your spouse passes away.

What Are Surviving Spousal Rights?

Florida Statute 732 Part II determines a surviving spouse’s rights to marital property regardless of how these assets are to be divided in a will. Even if a spouse was disinherited from marital assets in a will, the surviving spouse may be entitled to an elective share of the estate. This elective share may be up to 30% of the predeceased spouse’s estate. There are other assets a surviving spouse is entitled to, such as property and personal possessions.

Surviving Spouse Entitlements

Surviving spouses may be entitled to a share of property, possessions, and estate funds, even if they were not included in the decedent’s will. Here are the most common entitlements a surviving spouse may receive:

Elective Shares - Surviving spouses may be entitled to a portion of probatable and non-probatable assets. If the amount left to a surviving spouse is less than the Florida statutory provisions, a spouse can file a claim with the court. If the decedent leaves more than the Florida statutory provisions of their estate to their spouse, the spouse is entitled to the larger share stated in the will. If the decedent did not have a will and the estate is intestate, the surviving spouse may be entitled to a portion following Florida’s intestate laws.

Exempt Property - Surviving spouses may receive his/her portion of the Florida statutory provisions of personal property such as furniture, appliances, and up to two cars.

Family allowance - Lineal heirs such as spouses and children the decedent supported may have a right to receive a living allowance from the estate to help with the cost-of-living expenses while the estate is in probate. A family allowance may be valued by the Florida statutory provisions

Homestead Life Estate - A surviving spouse may have a right to live in the marital home for the rest of his/her life. Alternatively, a spouse can opt to receive an undivided 50% interest in the homestead, allowing the spouse to sell the property and receive 50% from the sale.

Social Security Death Benefit - Surviving spouses may be entitled to survivor benefits of Social Security benefits. You must notify the Social Security Administration of the passing and apply to receive these benefits.

Waiving Spousal Right

As previously stated, a spouse cannot disinherit a surviving spouse from their will. A spouse may voluntarily waive spousal rights in a prenuptial or post-nuptial agreement. If you are a surviving spouse and are concerned about receiving the share of the estate you will receive, you can file an action with the Court.

Jason D. Berger: Representation for Surviving Spouses in Treasure Coast

Ensure you receive what you are entitled to after your spouse passes away. The Law Office of Jason D. Berger will review the will and help you file a petition to obtain your portion. Call us at 772-403-5880 or request an appointment here.
Call to schedule a night or weekend appointment.
(772) 403-5880
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