Homestead – Surviving Spouse
Jacksonville Estate Law Firm Serving, Duval, Clay, Nassau, St. Johns, Flagler and Baker Counties
A surviving spouse is entitled to a life interest in the real estate that served as the couple’s main home. The remaining interest belongs to the deceased spouse’s descendants, such as his children. This means that even if the deceased spouse’s will left this property to someone other than his spouse, his spouse is still entitled to live in the home after his death so long as his will was made after the two married. This arrangement, known as a life estate, allows the surviving spouse to live in the home, rent-free, until she dies, at which time the remaining interest passes to the deceased spouse’s heirs. As with an elective share, if the surviving spouse waived her homestead rights in a marital agreement, she can’t claim this entitlement after her spouse’s death.
Florida inheritance law creates very, very valuable property rights for a widow. If you are a surviving husband or a surviving wife, often referred to as a “surviving spouse”, of a now deceased Florida citizen, you have many valuable property rights to bank accounts, brokerage accounts, a family residence, retirement accounts, personal property, and cash. That’s because Florida inheritance law views the surviving spouse as a very important part of the Florida family. So important, that Florida surviving spouse law wants to protect the widow/widower.
A surviving spouse, in Florida, has a right to a “family allowance” during the probate process or the estate administration process. This may be up to $18,000. In addition, a Florida surviving spouse, has certain rights to personal property, and an automobile of their husband or wife who just passed away. Federal law actually provides a widow with rights to your late spouse’s retirement account– even if your late spouse names somebody else as the retirement account beneficiary without your consent. In addition, if you are named as a joint tenant, with a right of survivorship, with your late spouse on a bank account, a brokerage account, or other property, you have certain legal presumptions and preferences under Florida inheritance law. If you own Florida real estate, or other property, as joint tenants, with your spouse, you may have an interest in what is referred to under Florida inheritance law as “tenancy by the entirety” or as “tenants by the entirety.”
The short of it? If you are a surviving spouse and your husband or wife just passed away in Florida, you need to know all of your rights under Florida inheritance law. Why? Because all of the valuable property rights, all the Florida inheritance rights, which you are entitled to during the Florida probate process, and during the Florida estate administration process, may not be readily apparent.
A special caution should be given to stepmothers, and stepfathers. If your husband or wife just died, and that husband or wife was not your first spouse, your spouse’s children from a prior relationship may not want you to receive all of the property which you are entitled to under Florida inheritance law. Probate litigation, and estate disputes, between stepchildren and second or third spouses of a Florida citizen who has just passed away are very common.
Because surviving spouses in Florida have such great rights, this can create a financial tension between you and your stepchildren. That’s why probate lawyers, lawyers in Florida who write wills and trusts, want to carefully plan your estate so that in inheritance war is not started when you die.