A Surviving Spouse’s Rights in Probate in Miami, FL: A Checklist

Florida law protects surviving spouses more strongly than many people expect, and those protections cannot easily be erased by a will. If your spouse has passed away in Miami-Dade, you likely have several distinct rights that operate at the same time. This checklist walks through the most important ones under the Florida Probate Code and the state constitution.

Step 1: Understand the Elective Share

Under the Florida elective share statutes, a surviving spouse can claim a percentage of the deceased spouse’s “elective estate,” set by law at thirty percent of a broad pool of assets, even if the will leaves the spouse less or nothing. This prevents disinheritance. The elective estate reaches beyond probate assets to include certain accounts, transfers, and property interests. There is a strict deadline to elect, so a Miami widow or widower should act promptly.

Step 2: Protect the Florida Homestead

Florida’s constitutional homestead protection is powerful. If the couple’s Miami home qualifies as homestead, it generally cannot be devised away from a surviving spouse and minor children. A surviving spouse typically receives at minimum a life estate in the homestead, or may elect a one-half tenancy-in-common interest instead. Homestead also shields the home from most creditors of the estate.

Step 3: Claim Exempt Property

Florida allows a surviving spouse (or children) to claim certain exempt property free of most creditor claims, including household furniture and appliances up to a statutory value and up to two motor vehicles used regularly by the family. These items pass to the spouse outside the general estate. The claim must be filed within the statutory window.

Step 4: Request a Family Allowance

During administration, a surviving spouse and lineal dependents may petition for a family allowance to cover living expenses while the estate is settled, up to a statutory cap. For a Miami family suddenly without a breadwinner, this can bridge the gap before distributions occur.

Step 5: Check the Intestate Share

If your spouse died without a will, Florida’s intestacy rules determine your share. A surviving spouse receives the entire estate when there are no descendants, or when all descendants are shared with the decedent and the spouse has no other children. Different blended-family situations split the estate. Knowing where you fall sets your expectations.

Step 6: Watch for Pretermitted Spouse Rights

If your spouse made a will before the marriage and never updated it, you may qualify as a “pretermitted spouse” and claim an intestate share, unless the will provided for the marriage or a valid waiver exists. Marital agreements can limit several of these rights, so any prenuptial or postnuptial agreement should be reviewed.

Quick Checklist

• Consider electing the thirty percent elective share.
• Assert homestead rights in the family home.
• Claim exempt property and vehicles.
• Petition for a family allowance for living costs.
• Mind every deadline; they are strict.

Consult a Florida Attorney

Spousal rights in Florida probate are valuable but time-sensitive, and waivers or agreements can change the picture. A licensed Florida probate attorney serving Miami-Dade can calculate your elective share, secure your homestead rights, and file each claim before the deadlines run.