Florida funeral rights

Florida Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

Florida Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Florida answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Florida law, verified as of September 2026.

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Florida Surviving Spouse Rights: At a Glance

Here are the Florida facts that decide most Florida surviving spouse rights claims:

Elective share Florida gives a surviving spouse of a decedent who died domiciled in Florida the right to take 30 percent of the “elective estate,” under Fla. Stat. § 732.201 (right to elective share) and § 732.2065 (amount). The percentage is flat — Florida uses no sliding scale based on length of marriage and no reduction for the spouse’s own wealth. The share is computed against the elective estate as valued under § 732.2055, not merely the probate assets, and § 732.2075 sets the order in which assets are applied to satisfy it. Florida is not a community property state, so this election is the primary protection against disinheritance by will.
Deadline to elect Under Fla. Stat. § 732.2135(1), the election must be filed on or before the **earlier** of (a) 6 months after the date a copy of the notice of administration is served on the surviving spouse, an attorney in fact, or a guardian of the spouse’s property, or (b) 2 years after the decedent’s date of death. Section 732.2135(2) allows a petition for extension filed within that period, or within 40 days after termination of a proceeding affecting the amount under § 732.2075(1), whichever is later, but never more than 2 years after death. An election may be withdrawn within 8 months after the decedent’s death and before the court’s order of contribution under § 732.2135(4). Deadlines are strict; you may want to confirm timing with the probate court or a licensed Florida attorney.
Counts non-probate assets (augmented estate) YES. Florida does not use the phrase “augmented estate,” but Fla. Stat. § 732.2035 builds an “elective estate” that reaches well beyond probate assets. It includes: the probate estate; the decedent’s interest in protected homestead; accounts and securities registered POD, TOD, “in trust for,” or in survivorship co-ownership form; the decedent’s fractional interest in joint tenancy with right of survivorship and one-half of tenancy-by-the-entirety property; revocable trusts and other property the decedent could revoke or amend alone or with another; property in which the decedent retained an income right or a power of appointment; net cash surrender value of life insurance on the decedent’s life; the decedent’s interest in pension, profit-sharing, retirement and deferred compensation plans; property transferred within 1 year of death that would have been included; and property transferred in satisfaction of the elective share. Section 732.2045 lists exclusions, including irrevocable transfers made with the spouse’s written consent and certain term life insurance.
Community property state NO. Florida is a separate-property state and does not give a surviving spouse an automatic one-half interest in property acquired during the marriage; the 30 percent elective share under Fla. Stat. § 732.2065 serves that protective function instead. Florida does recognize community property rights that were acquired while the couple lived in a community property jurisdiction, preserved under the Florida Uniform Disposition of Community Property Rights at Death Act, Fla. Stat. §§ 732.216–732.228, and § 732.221 confirms one-half of that property belongs to the surviving spouse and is not subject to the decedent’s disposition.
Homestead allowance Florida has no fixed dollar “homestead allowance.” Instead the spouse receives rights in the home itself. Under Fla. Const. Art. X, § 4(c) and Fla. Stat. § 732.4015, homestead may not be devised at all if the owner is survived by a spouse or a minor child. Under Fla. Stat. § 732.401(1), if the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate in the homestead with a vested remainder to the descendants per stirpes. Section 732.401(2) lets the spouse instead elect an undivided one-half interest as a tenant in common, with the other half to the descendants per stirpes. That homestead election must be made within 6 months after death and during the spouse’s lifetime under § 732.401(2)(b), a deadline that may not be extended except under § 732.401(2)(c). Section 732.4017 provides a safe harbor for inter vivos transfers of homestead to a trust.
Exempt property Under Fla. Stat. § 732.402, if the decedent was domiciled in Florida, the surviving spouse (or, if none, the decedent’s children) may claim exempt property free of all claims except perfected security interests. That property is household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of 20000 as of the date of death, plus two motor vehicles as defined in § 316.003 that are held in the decedent’s name, regularly used by the decedent or immediate family, and each not over 15000 pounds gross vehicle weight. Also included are qualified tuition program funds under s. 529 of the Internal Revenue Code and certain death benefits for teachers and school administrators under Fla. Stat. § 112.1915. Under § 732.402(6), the right is waived unless a petition for determination of exempt property is filed by the later of 4 months after service of the notice of administration or 40 days after termination of a proceeding involving the will’s construction, admission, or validity.
Family allowance Under Fla. Stat. § 732.403, if the decedent was domiciled in Florida, the surviving spouse and the decedent’s lineal heirs whom the decedent was supporting or obligated to support are entitled to a reasonable allowance in money out of the estate for maintenance during administration. The total allowance may not exceed 18000, and the court may order it paid as a lump sum or in periodic installments. It is paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. The family allowance is in addition to protected homestead, exempt property, and any share passing by will or intestacy, and it is not charged against that share.
Court / filing The circuit court, probate division, in the Florida county where the decedent was domiciled at death, under Fla. Stat. § 733.101 (venue) and Fla. Stat. § 26.012 (circuit court jurisdiction over probate). Florida’s 20 judicial circuits handle all probate matters; county courts do not. — The filing is the “Election to Take Elective Share,” governed by Fla. Prob. R. 5.360(a) and Fla. Stat. § 732.2125. If an agent under a power of attorney or a guardian of the property files on the spouse’s behalf, Rule 5.360(a)(2) first requires a “Petition for Approval to Make Election.” After entitlement is determined, the personal representative files a “Petition to Determine Amount of Elective Share” under Rule 5.360(c). The related homestead filing is a notice of election under Fla. Stat. § 732.401(2), and exempt property is claimed by a “Petition for Determination of Exempt Property” under § 732.402(6).

Why the Will Cannot Disinherit a Spouse in Florida

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Florida uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Florida surviving spouse rights fact that a grieving spouse most often learns too late.

The Florida Elective Share

Florida gives a surviving spouse of a decedent who died domiciled in Florida the right to take 30 percent of the “elective estate,” under Fla. Stat. § 732.201 (right to elective share) and § 732.2065 (amount). The percentage is flat — Florida uses no sliding scale based on length of marriage and no reduction for the spouse’s own wealth.

The share is computed against the elective estate as valued under § 732.2055, not merely the probate assets, and § 732.2075 sets the order in which assets are applied to satisfy it. Florida is not a community property state, so this election is the primary protection against disinheritance by will.

The deadline: Under Fla. Stat. § 732.2135(1), the election must be filed on or before the **earlier** of (a) 6 months after the date a copy of the notice of administration is served on the surviving spouse, an attorney in fact, or a guardian of the spouse’s property, or (b) 2 years after the decedent’s date of death.

Section 732.2135(2) allows a petition for extension filed within that period, or within 40 days after termination of a proceeding affecting the amount under § 732.2075(1), whichever is later, but never more than 2 years after death. An election may be withdrawn within 8 months after the decedent’s death and before the court’s order of contribution under § 732.2135(4).

Deadlines are strict; you may want to confirm timing with the probate court or a licensed Florida attorney.

What counts: YES. Florida does not use the phrase “augmented estate,” but Fla. Stat. § 732.2035 builds an “elective estate” that reaches well beyond probate assets.

It includes: the probate estate; the decedent’s interest in protected homestead; accounts and securities registered POD, TOD, “in trust for,” or in survivorship co-ownership form; the decedent’s fractional interest in joint tenancy with right of survivorship and one-half of tenancy-by-the-entirety property; revocable trusts and other property the decedent could revoke or amend alone or with another; property in which the decedent retained an income right or a power of appointment;

net cash surrender value of life insurance on the decedent’s life; the decedent’s interest in pension, profit-sharing, retirement and deferred compensation plans; property transferred within 1 year of death that would have been included; and property transferred in satisfaction of the elective share.

Section 732.2045 lists exclusions, including irrevocable transfers made with the spouse’s written consent and certain term life insurance.

Community property: NO. Florida is a separate-property state and does not give a surviving spouse an automatic one-half interest in property acquired during the marriage; the 30 percent elective share under Fla. Stat. § 732.2065 serves that protective function instead.

Florida does recognize community property rights that were acquired while the couple lived in a community property jurisdiction, preserved under the Florida Uniform Disposition of Community Property Rights at Death Act, Fla. Stat. §§ 732.216–732.228, and § 732.221 confirms one-half of that property belongs to the surviving spouse and is not subject to the decedent’s disposition.

Allowances the Spouse Gets on Top of the Will

Homestead: Florida has no fixed dollar “homestead allowance.” Instead the spouse receives rights in the home itself. Under Fla. Const. Art. X, § 4(c) and Fla. Stat. § 732.4015, homestead may not be devised at all if the owner is survived by a spouse or a minor child. Under Fla.

Stat. § 732.401(1), if the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate in the homestead with a vested remainder to the descendants per stirpes. Section 732.401(2) lets the spouse instead elect an undivided one-half interest as a tenant in common, with the other half to the descendants per stirpes.

That homestead election must be made within 6 months after death and during the spouse’s lifetime under § 732.401(2)(b), a deadline that may not be extended except under § 732.401(2)(c). Section 732.4017 provides a safe harbor for inter vivos transfers of homestead to a trust.

Exempt property: Under Fla. Stat. § 732.402, if the decedent was domiciled in Florida, the surviving spouse (or, if none, the decedent’s children) may claim exempt property free of all claims except perfected security interests.

That property is household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of 20000 as of the date of death, plus two motor vehicles as defined in § 316.003 that are held in the decedent’s name, regularly used by the decedent or immediate family, and each not over 15000 pounds gross vehicle weight. Also included are qualified tuition program funds under s.

529 of the Internal Revenue Code and certain death benefits for teachers and school administrators under Fla. Stat. § 112.1915. Under § 732.402(6), the right is waived unless a petition for determination of exempt property is filed by the later of 4 months after service of the notice of administration or 40 days after termination of a proceeding involving the will’s construction, admission, or validity.

Family allowance: Under Fla. Stat. § 732.403, if the decedent was domiciled in Florida, the surviving spouse and the decedent’s lineal heirs whom the decedent was supporting or obligated to support are entitled to a reasonable allowance in money out of the estate for maintenance during administration. The total allowance may not exceed 18000, and the court may order it paid as a lump sum or in periodic installments.

It is paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. The family allowance is in addition to protected homestead, exempt property, and any share passing by will or intestacy, and it is not charged against that share.

Married After the Will Was Signed

Under Fla. Stat. § 732.301, a spouse who married the testator after the will was executed and who survives the testator is a “pretermitted spouse” and receives a share of the estate equal in value to what that spouse would have received had the testator died intestate — determined under § 732.102.

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The pretermitted share is not available if any of three things is true: provision was made for the spouse by marital agreement; the spouse is provided for in the will; or the will discloses an intention not to make provision for the spouse. A pretermitted spouse may alternatively pursue the 30 percent elective share; you may be able to compare both figures with a licensed Florida attorney.

Waiver and Disqualification in Florida

Under Fla. Stat. § 732.702(1), the rights of a spouse or surviving spouse may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the waiving party in the presence of two subscribing witnesses. A waiver of “all rights,” or equivalent language, waives the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative.

Under § 732.702(2), each spouse must make fair disclosure of that spouse’s estate if the agreement is executed **after** marriage; no disclosure is required for an agreement executed **before** marriage. Section 732.702(3) provides that no consideration other than execution of the agreement is necessary. Independent counsel is not a statutory requirement, though marital agreements remain subject to general contract defenses such as fraud, duress, and coercion.

What forfeits the rights: Florida has no abandonment or desertion forfeiture, and a merely pending dissolution of marriage does not cut off spousal rights — the marriage must be legally terminated, after which the person is no longer a “surviving spouse” and Fla. Stat. § 732.507(2) voids will provisions affecting the former spouse. Under Fla.

Stat. § 732.805, a surviving spouse who procured the marriage by fraud, duress, or undue influence forfeits all rights that inure solely from the marriage — elective share, family allowance, intestate share, homestead, exempt property, pretermitted share, and PR preference — unless the spouses voluntarily cohabited with full knowledge of the facts or otherwise ratified the marriage. Under Fla.

Stat. § 732.802, a person who unlawfully and intentionally kills the decedent takes nothing by the death. A valid written waiver under § 732.702 also bars the rights described above.

If there is no will: Under Fla. Stat. § 732.102, a surviving spouse takes the entire intestate estate if there are no surviving descendants, or if all of the decedent’s descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants; otherwise the surviving spouse takes one-half of the intestate estate. The Florida dying-without-a-will guide linked below covers that in full.

Other Florida rules: Florida’s protections are unusual in several ways. Homestead is constitutional, not just statutory: Fla. Const. Art. X, § 4(c) forbids devising the homestead if the owner leaves a spouse or minor child, and Fla. Stat. § 732.401 gives the surviving spouse a default life estate with a 6-month right to elect a one-half tenancy in common instead — a modern remnant of dower.

Florida abolished common-law dower and curtesy for deaths after October 1, 1973 (Fla. Stat. § 732.111). There is no sliding scale by length of marriage; the share is a flat 30 percent regardless of a one-year or fifty-year marriage. Section 732.2025 permits satisfying the share through an “elective share trust,” and § 732.2095 governs valuation and abatement. Fla.

Stat. § 732.805 (fraud/duress/undue influence in procuring a marriage) is a distinctive anti-predatory-marriage provision, and it authorizes attorney fee awards. CS/HB 1337, Chapter 2026-57, effective July 1, 2026, raised the summary administration threshold from 75000 to 150000 but left the elective share, exempt property, and family allowance figures unchanged.

Mistakes That Cost a Surviving Spouse in Florida

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Florida surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Florida Surviving Spouse Rights

Claiming Florida surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

You don’t have to do this alone

If you are settling a loved one’s estate in Florida, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: Florida Surviving Spouse Rights

  • The will cannot disinherit you: Florida surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
  • You must elect: Florida surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
  • The deadline is short: the election that secures Florida surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
  • Allowances come first: the homestead, exempt-property, and family allowances under Florida surviving spouse rights are paid before creditors and heirs.
  • Trusts may count: in augmented-estate states, Florida surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
  • Community property is different: where it applies, half is already the survivor’s, and Florida surviving spouse rights are about the other half.
  • A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Florida surviving spouse rights.
  • Prenups can waive: Florida surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
  • Separation can forfeit: a pending divorce or abandonment can end Florida surviving spouse rights in some states before the death.
  • Sign nothing early: a release or disclaimer offered by another heir can waive Florida surviving spouse rights the spouse never knew about.
  • Compare before you elect: Florida surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
  • The intestate share is separate: when there is no will, Florida surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: Florida Surviving Spouse Rights

What are Florida Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Florida Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Florida Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Florida surviving spouse rights are lost.

Do Florida Surviving Spouse Rights include assets in a trust?

In augmented-estate states, yes — trusts, joint accounts, and large gifts are added back before the share is calculated. In others, Florida surviving spouse rights reach only the probate estate.

What allowances come with Florida Surviving Spouse Rights?

A homestead allowance or the right to remain in the home, an exempt-property allowance for household goods and a car, and a family allowance during administration. These Florida surviving spouse rights are paid first.

Can a prenup waive Florida Surviving Spouse Rights?

Yes, if it was in writing, signed voluntarily, and made with fair disclosure of assets. A prenup that fails those tests does not waive Florida surviving spouse rights.

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Official Florida Sources & Resources

This Florida guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Florida Estate Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.