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Your Rights as a Surviving Spouse in Florida

Surviving a Spouse
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The time following the passing of a spouse is understandably stressful, and for many this is further amplified due to a lack of knowledge regarding Florida probate law. Every surviving spouse is entitled to certain rights. For instance, one’s share of joint property will always be retained when a spouse dies, and property with joint tenancy will be retained fully. However, other rights will depend on if, when and how a will was drafted.

A Miami probate attorney can ensure the widowed individual’s rights are protected every step of the way. Here are some key things widows and widowers should know before that time comes.

If there was no will…

When a spouse passes away without leaving a will, he or she dies “intestate.” In such situations, the inheritance the surviving spouse receives will depend on who else the deceased leaves behind. If there are no surviving children, the spouse will have the right to the full estate. If the couple shared children, this will not stop the surviving spouse from receiving 100 percent of the estate. However, if the deceased shared children with someone else, the surviving spouse will likely retain 50 percent of the estate.

If there was a will drafted before marriage…

If the deceased spouse’s will was drafted prior to his or her marriage to the current spouse, the surviving individual is considered a “pretermitted spouse.” Even though the deceased died testate, the surviving spouse will still be entitled to an intestate share, as long as the will does not specifically state otherwise. Even if this is the case, a surviving spouse in Florida still has options, as discussed in the next scenario.

If there was a will drafted after marriage…

Any time there is a will, it can be expected that the deceased’s wishes will be honored, provided of course the will is not successfully contested. However, if the will disinherits the spouse, either explicitly or due to a failure to name the individual, the spouse still has the right to an elective share of the estate. In the state of Florida, this means 20 percent of the estate, also including assets such as property that had been transferred by the deceased within the year following his or her death, life insurance policy payments, and other property. In this situation, the surviving spouse will also be entitled to a family allowance for living expenses, to be awarded as a cash payment not exceeding $18,000.

If you recently lost your spouse and need help navigating the probate process, a Miami probate attorney at Graham Legal is here to see you through it with compassion. If you simply need to draft a will to ensure there are no questions when the time comes, we can help with that too. Contact our office today to schedule a free consultation with a member of our team.

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