Learn About Rights Of Surviving Spouses

The Law Office of Horton & Horton, P.A , in Clermont, also assists people in matters related to transfer of spousal share and elective share under Florida's probate laws.

Call us at 888-672-4205 or locally at 352-432-1618 if you have questions about any of the following matters regarding elective share.

The state of Florida has specific statues that protect a surviving spouse from being completely disinherited. A surviving spouse is entitled to part of the deceased spouse's estate and should consult an attorney to discuss his/her options.


If a spouse dies without a will, his estate will pass through intestacy. If the surviving spouse is the decedent's only survivor, or if all of the decedent's children are also the children of the surviving spouse, he/she would be entitled to receive the entire estate. If the deceased spouse is survived by children from someone other than the surviving spouse, or if the surviving spouse has children from another person, the surviving spouse is entitled to one half of the decedent's estate.

Elective Share

A surviving spouse may be entitled to receive an elective share of the deceased spouse's estate. The elective share in Florida is 30 percent. The surviving spouse may make an election to receive his/her elective share if the deceased spouse's will disinherited his/her, omitted his/her, or provided him/her with less than 30 percent of the decedent's estate. A surviving spouse should consult an attorney to determine if he/she qualifies for an elective share.


A surviving spouse is entitled to receive an interest in a homestead shared with the deceased spouse, even if a will provided otherwise. If a homestead is left to someone other than a surviving spouse, he/she may take either a life estate in the property, with the remaining interest going to the decedent's descendants, or he/she can elect to take a one half interest in the property as a tenant in common with the decedent's descendants. A surviving spouse's homestead rights must be made timely and according to Florida procedure.

Will Made Before Marriage

A will made before a marriage may exclude a spouse. In this case, the surviving spouse is considered to be "pretermitted" and may be entitled to a share of the decedent's estate. Under Florida law, a pretermitted spouse is entitled to receive a share equivalent to the amount that he/she would receive if the estate passed though intestacy, less any property devised in a valid will. If the pretermitted spouse's share falls below 30 percent, he/she may choose to take an elective share instead.

Family Allowance And Exempt Property

In Florida, a surviving spouse is entitled to a family allowance of up to $18,000. The allowance is intended to provide support for the decedent's family during probate proceedings. The allowance is paid by the decedent's estate. If a decedent has minor children who do not live with the surviving spouse, the allowance is divided accordingly. In addition to the family allowance, a surviving spouse is also entitled to certain exempt property. Exempt property includes up to $20,000 of household furniture, furnishings and appliances, and two motor vehicles (subject to restrictions). Any items specifically devised in a decedent's will are not exempt. See Florida Statutes section 732.402 for a full definition of exempt property.

Contact Us For A Free Initial Consultation

From our offices in Clermont, we advise and represent clients in probate and estate transfer matters throughout the Orlando metropolitan area and central Florida. Call us at 888-672-4205 or locally at 352-432-1618 today.