When a Surviving Spouse Must Act in Florida Probate (Deadlines That Cannot Be Missed)

In a Florida probate, a surviving spouse usually must take affirmative steps to claim certain rights, because several of the spouse’s most valuable protections are not automatic and expire on hard statutory deadlines. The most time-sensitive of these are the elective share election, the homestead one-half interest election, and the family allowance request. If those deadlines pass without action, the surviving spouse can lose tens of thousands of dollars in rights that the law would otherwise have guaranteed.

I have sat across the table from too many widows and widowers who assumed that “everything goes to the spouse anyway,” and learned the hard way that Florida probate does not work that way, especially when there is no will. This article walks through exactly when a surviving spouse must act, which clocks start running, and where the genuine pitfalls hide.

What “must act” really means in a Florida probate

Florida law gives a surviving spouse two very different kinds of rights. Some pass automatically the moment the personal representative administers the estate. Others are elective, meaning the spouse must formally choose them, in writing, within a deadline, or forfeit them. Knowing which is which is the whole ballgame.

The automatic rights generally include the spouse’s intestate share when there is no will, and the spouse’s interest in protected homestead. The elective or claim-based rights, the ones that require the spouse to act, include the elective share, the option to convert a homestead life estate into a half-interest, the family allowance, and a pretermitted spouse claim. Miss the deadline on an elective right and a court will not bend the rule out of sympathy.

The intestate share: what passes automatically when there is no will

When someone dies without a valid will in Florida, their probate assets pass by intestate succession under Florida Statute § 732.102. The surviving spouse’s share depends entirely on whether there are children, and whose children they are:

• The spouse takes the entire intestate estate if the decedent left no surviving descendants, or if all the descendants are also descendants of the surviving spouse and the spouse has no other descendants.
• The spouse takes one-half if the decedent had one or more surviving descendants who are not also descendants of the surviving spouse, or if the surviving spouse has separate descendants of their own.

That second scenario, the blended-family split, is where intestate estates most often surprise people. A surviving spouse who expected to inherit everything can find themselves sharing the estate equally with stepchildren they barely know. This is precisely why dying without a will is so dangerous in second marriages, and it is the editorial heartbeat of estate planning in Miami. The intestate share itself does not require the spouse to “act” in the technical sense, but it does require the spouse to understand what they are entitled to before they sign off on anything the personal representative proposes.

Homestead: protected, but the spouse may need to elect

Florida’s homestead protection is one of the strongest in the country, and it operates independently of the will and of intestate succession. Under Florida Statute § 732.401, if the decedent is survived by a spouse and one or more descendants, the homestead does not pass freely. By default, the surviving spouse receives a life estate in the homestead, with the remainder going to the decedent’s descendants.

A life estate is not always what a surviving spouse wants. It carries the burden of taxes, insurance, and upkeep, and it can be hard to sell. Recognizing that, the Legislature created an election:

The surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, instead of the life estate, with the remaining one-half going to the decedent’s descendants.

This homestead election must be made within six months of the decedent’s death, and it must be filed in the probate proceeding. Six months arrives faster than grieving families expect. I counsel spouses to decide on the life estate versus half-interest question early, because once the window closes, the default life estate locks in. For families navigating these choices, our overview of Florida probate procedure lays out the sequence of filings.

The elective share: the right that most often gets lost

The elective share exists to stop one spouse from disinheriting the other. Under Florida Statute § 732.201, the surviving spouse of a person who died domiciled in Florida is entitled to 30 percent of the elective estate, a figure that reaches well beyond probate assets to capture revocable trusts, certain pay-on-death accounts, jointly held property, and other assets the decedent controlled at death.

The elective share matters even in a no-will estate. A surviving spouse who is set to receive only half of an intestate estate, because of stepchildren, may actually do better claiming the elective share against the full elective estate, particularly when the decedent funneled assets into a trust or beneficiary-designated accounts to keep them out of probate.

Here is the deadline that ends more elective share rights than any other. The election must be filed by the earlier of:

1. Six months after the surviving spouse is served with a copy of the notice of administration; or
2. Two years after the decedent’s date of death.

There is a narrow path to extend the six-month deadline if the spouse petitions before it runs, but no one should count on it. The cleanest move is to evaluate the elective share immediately, because the calculation requires gathering trust documents, account statements, and deeds, all of which take time. Probate has many moving parts, and missing a single filing date can be irreversible. Morgan Legal’s discussion of the echoes a truth we see in Florida every week: the procedural traps, not the family disputes, are what quietly cost beneficiaries the most.

Family allowance and exempt property: smaller deadlines, real money

Two additional protections give a surviving spouse cash and assets during administration, and both reward early action.

Family allowance under § 732.403

If the decedent was domiciled in Florida, the surviving spouse and dependent lineal heirs are entitled to a reasonable family allowance for maintenance during administration. The total allowance may not exceed $18,000, and the court can order it paid as a lump sum or in installments. Crucially, this allowance is in addition to homestead, exempt property, and anything the spouse inherits, and it is not chargeable against those shares. It exists to keep a surviving spouse afloat while the estate is tied up, but the court will not award it sua sponte. Someone has to ask.

Exempt property under § 732.402

The surviving spouse (or, if none, the children) may claim exempt property that passes outside the reach of most creditors, including household furniture and appliances up to a statutory value, two motor vehicles meeting the statute’s criteria, and certain qualified tuition program assets and death benefits for teachers. The petition to determine exempt property must generally be filed within the later of four months after service of the notice of administration or 40 days after termination of any will-contest proceeding. Like the family allowance, exempt property is not chargeable against the spouse’s other entitlements, but it must be claimed in writing.

Two situations where a spouse must act even with a will

Although this site focuses on intestate estates, a surviving spouse should know two will-related rights, because they intersect with the same deadlines.

• Pretermitted spouse: Under Florida Statute § 732.301, a spouse who married the decedent after the decedent executed the will, and who is not provided for or intentionally omitted, generally receives an intestate share. The spouse must raise this in the probate proceeding.
• Will contests: If a will appears to disinherit the spouse improperly, or was procured by undue influence, the spouse must file an objection within the strict statutory window after service of the notice of administration, typically the same general timeframe as other objections.

A practical timeline for the surviving spouse

Because the deadlines run from different trigger dates, I give surviving spouses a simple sequence to keep them oriented:

1. Immediately: Locate the death certificate, any will or trust, deeds to the homestead, and recent account statements. The elective share calculation cannot start without them.
2. Within the first months: Decide on the homestead election (six months from death) and file the family allowance and exempt property requests.
3. When the notice of administration is served: Calendar the elective share deadline, six months out, and confirm it against the two-years-from-death backstop.
4. Throughout: Do not waive, release, or sign receipts presented by the personal representative until a probate attorney confirms you are not surrendering an unclaimed right.

These timelines are not unique to Florida in spirit; experienced probate counsel anywhere will tell you the same. Morgan Legal’s New York team, for instance, walks clients through the parallel mechanics of , and the lesson travels: a surviving spouse’s rights are only as good as the deadlines they meet. For Florida-specific representation, Morgan Legal’s handles the same elections discussed here.

Why a surviving spouse should not go it alone

The hardest part of advising a surviving spouse is timing. The deadlines that matter most begin while the family is still grieving, the paperwork is scattered, and no one is thinking about statutes. Yet the elective share, the homestead election, the family allowance, and exempt property together can change a spouse’s outcome by a six-figure margin, and every one of them must be claimed.

If your spouse recently passed away in or around Miami, especially without a will, the safest step is to map every applicable deadline before any of them runs. You can review your options on our wills and intestacy resources or reach our office directly through the contact page. Acting early is not about being aggressive. It is about not forfeiting rights the law already gave you.

This article is general information about Florida probate law and is not legal advice. Statutory amounts and deadlines change, and how they apply depends on the specific facts of your case. Consult a licensed Florida probate attorney about your situation.

Frequently Asked Questions

How long does a surviving spouse have to claim the elective share in Florida?

Under Florida Statute § 732.201, the election must be filed by the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s date of death. A narrow extension is possible if the spouse petitions before the six-month period expires, but it should not be relied upon. The elective share equals 30 percent of the elective estate, which reaches beyond probate assets to include revocable trusts and certain beneficiary-designated accounts.

Does a surviving spouse automatically inherit everything in Florida if there is no will?

Not always. Under Florida Statute § 732.102, the spouse inherits the entire intestate estate only if there are no descendants, or if all descendants are shared with the spouse and the spouse has no separate descendants. In blended families, where the decedent or the spouse has children from another relationship, the surviving spouse takes only one-half of the intestate estate, with the rest passing to the decedent’s descendants.

What is the deadline to make the homestead election in Florida probate?

When a decedent is survived by a spouse and descendants, the homestead defaults to a life estate for the spouse with the remainder to the descendants. Under Florida Statute § 732.401, the surviving spouse may instead elect to take an undivided one-half interest as a tenant in common, but that election must be made within six months of the decedent’s death and filed in the probate proceeding.

Can a surviving spouse receive money during probate administration in Florida?

Yes. Under Florida Statute § 732.403, the surviving spouse and dependent lineal heirs may receive a family allowance for maintenance during administration, capped at a total of $18,000, payable as a lump sum or in installments. It is in addition to, and not charged against, homestead, exempt property, or the spouse’s inheritance, but it must be requested through the court.

What happens if a surviving spouse misses these probate deadlines?

Florida courts strictly enforce these statutory deadlines. If the elective share election, homestead election, family allowance request, or exempt property petition is not filed in time, the surviving spouse generally forfeits that right permanently, regardless of the financial loss. That is why mapping every applicable deadline early, ideally with a probate attorney, is the single most important step a surviving spouse can take.