In Florida probate, a surviving spouse must act when the deceased spouse’s estate is opened in circuit court and a clock starts running on time-sensitive rights such as the elective share, the family allowance, exempt property, and homestead protections. These rights are not automatic; several must be claimed by filing within fixed statutory deadlines, often measured from the date of service of the notice of administration or the first publication of notice to creditors. If a surviving spouse waits too long, valuable protections can be lost permanently, even when the will or intestacy result seems unfair.
That last sentence is the part most people learn the hard way. A surviving spouse is grieving, the house is in someone else’s name, the bank account is frozen, and a relative or a lawyer hands them a stack of papers with words like “Notice of Administration” printed across the top. The instinct is to set the papers aside until things calm down. In Florida, that instinct can cost you tens of thousands of dollars. Below is a practical map of when you have to move, what you are entitled to, and how the role of personal representative changes the calculus.
The surviving spouse wears two hats: heir and, often, personal representative
Florida law gives a surviving spouse a privileged position in two distinct ways. First, the spouse is usually first in line to serve as personal representative (Florida’s term for what other states call an executor or administrator) under Florida Statutes section 733.301. Second, the spouse holds a bundle of substantive rights as a beneficiary or claimant against the estate, regardless of who actually administers it.
These two roles can pull in different directions. As personal representative, you owe fiduciary duties to all beneficiaries and creditors. As a surviving spouse claiming an elective share or family allowance, you are asserting personal rights that may reduce what other beneficiaries receive. It is entirely possible, and common, for one person to occupy both seats at once. When that happens, the smart move is to separate the decisions: act in the estate’s interest when administering, and protect your own statutory rights as a claimant, ideally with independent advice.
Who has priority to be appointed
If there is a valid will, the person named in it has first priority. Absent a controlling nomination, the surviving spouse has priority to be appointed personal representative in a testate estate, followed by the beneficiary selected by a majority in interest. In an intestate estate (no will), the surviving spouse again comes first. Priority is not the same as obligation. You can decline to serve and let another qualified person handle the day-to-day work while you still pursue your spousal rights.
The deadlines that actually matter for a surviving spouse
Most Florida probate rights for a spouse are governed by deadlines, and the deadlines are unforgiving. Here are the ones a surviving spouse cannot afford to miss.
- Elective share election — 6 months / 2 years. Under Florida Statutes section 732.2135, the election to take the elective share must be filed by the earlier of (a) six months after service of the notice of administration, or (b) two years after the decedent’s death. The deadline can be extended in limited circumstances, but you should never count on an extension.
- Petition to determine homestead status. Homestead does not pass through probate the way ordinary assets do, and getting a court order confirming its protected character is something a spouse typically wants done promptly so title can be cleared.
- Family allowance and exempt property. The claim for exempt property under section 732.402 must be filed on or before the later of the date that is four months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission, or contest of the will. Miss it and the right is deemed waived.
- Objections to the will or to the personal representative. An interested person served with notice of administration generally has three months from that service to object to the validity of the will, the venue, or the jurisdiction of the court.
Notice the recurring trigger: service of the notice of administration. That single document starts several clocks at once. If you are the surviving spouse, the day you are served is the day to call a Florida probate attorney, not the day to file the papers in a drawer.
The elective share: Florida’s promise that a spouse cannot be disinherited
Florida does not allow one spouse to cut the other out entirely. The elective share under Florida Statutes section 732.201 entitles a surviving spouse to 30% of the “elective estate,” a figure that reaches well beyond the probate estate. The elective estate is intentionally broad. It captures assets that pass outside of probate and that a spouse might otherwise think are untouchable.
The elective estate can include, among other things, probate assets, certain revocable trust property, jointly held accounts, pay-on-death and transfer-on-death accounts, the net cash surrender value of life insurance owned by the decedent on the decedent’s own life, and some property transferred within one year of death. The breadth is the point: Florida built the elective share to defeat the classic “I’ll just put everything in a trust or a joint account so my spouse gets nothing” maneuver.
When the elective share makes sense is a judgment call. If you are already the primary beneficiary under the will or trust, electing may give you less than simply taking what was left to you. If you were minimized or omitted, the 30% floor can be transformative. This is exactly the kind of math that rewards getting numbers on paper before the six-month clock runs.
The elective share can be waived
Spouses frequently waive the elective share, often without remembering they did so. A valid prenuptial or postnuptial agreement, or a marital settlement, can extinguish the right entirely. Before assuming you have a claim, the agreements signed during the marriage need to be read carefully. A waiver that does not meet Florida’s disclosure and execution requirements may be vulnerable, but that is a fight, not a formality.
Florida homestead: protection that does not pass through the will
Homestead is where many surviving spouses get blindsided. Florida’s constitutional homestead protections restrict how a person can devise the family residence when survived by a spouse or minor child. If a homeowner tries to leave the homestead to someone other than the spouse, the devise can be invalid, and the surviving spouse generally takes a life estate with a remainder to the descendants — or, under section 732.401, the spouse may elect to take an undivided one-half interest as a tenant in common instead.
That election is itself deadline-driven: it must be made within six months of the decedent’s death and recorded as required by statute. The life-estate-versus-half-interest decision has real consequences for who pays taxes, insurance, and upkeep, and for whether the home can be sold. It is not a decision to make by intuition.
One more practical point. Because homestead passes outside probate, a surviving spouse often needs a separate petition to determine homestead status to clear title, even in a small or simple estate. Lenders and title companies will want that order before the spouse can refinance or sell.
Family allowance and exempt property: short-term cash and protected belongings
Probate is slow. While the estate is tied up, a surviving spouse and lineal heirs the decedent was supporting can ask for a family allowance under section 732.403 — up to $18,000, paid out of estate assets to cover living expenses during administration. It is not a loan and is not charged against the spouse’s eventual share.
Separately, exempt property under section 732.402 lets the spouse take certain assets free of most creditor claims: household furniture, furnishings, and appliances in the decedent’s usual residence up to a net value of $20,000, two motor vehicles meeting the statute’s criteria, qualified tuition program funds, and certain death benefits for teachers and school administrators. These items come “off the top,” before general distribution, but only if the claim is filed on time.
What a surviving spouse who is also the personal representative must do first
If you accept appointment, the early administrative steps matter. A disciplined first 90 days protects both the estate and your own rights.
- Get appointed and obtain Letters of Administration. Without letters, banks and brokerages will not release information or funds.
- Secure and inventory assets. Locate accounts, deeds, insurance policies, and digital assets. File the inventory within the time the rules require.
- Serve the notice of administration and publish notice to creditors. This starts the creditor claim period — and, for you personally, the spousal-rights clocks. Calendar every deadline the day you serve.
- Evaluate your own claims separately. Before distributing anything, decide whether to elect the elective share, claim homestead, and file for family allowance and exempt property. Do this with counsel who is advising you, not the estate.
- Pay valid claims and taxes, then distribute. Improper early distribution can leave the personal representative personally exposed if creditors or the elective share later eat into what was paid out.
For a deeper look at how the firm handles the personal-representative role end to end, see our overview of Florida probate administration, and our practical guide to the Florida probate process for personal representatives.
How Florida compares — and why out-of-state assets complicate things
Surviving spouses often hold property in more than one state. A New York condo, a Florida homestead, a brokerage account titled in another jurisdiction — each can require its own proceeding. Florida’s elective share and homestead rules are unusually protective; other states structure spousal rights very differently. New York, for example, runs its surviving-spouse “right of election” and its probate proceedings under its own statutes and timelines, which do not mirror Florida’s. If your late spouse owned real property up north, you may need an in addition to the Florida administration, and it helps to understand before you decide how to coordinate the two estates.
Coordinating ancillary administration across states is one of the most common ways deadlines slip. Each state’s clock runs independently. A spouse focused on the Florida elective share can easily overlook a parallel election window in another jurisdiction.
Common mistakes that cost surviving spouses their rights
- Treating the notice of administration as junk mail. It is the single most important document for your deadlines.
- Assuming joint accounts and trusts are off-limits. The elective estate reaches many non-probate assets.
- Selling or refinancing the home before homestead status is determined. Title problems surface at the worst time.
- Distributing estate assets too early as personal representative. Personal liability follows.
- Forgetting a signed prenuptial agreement waived the elective share. Read the marital agreements first.
If you are a surviving spouse trying to decide whether to serve as personal representative, whether to elect against the will, or how to protect the family home, the safest path is to map every deadline at the outset. You can review your options and the documents that govern them, and if you are ready to talk specifics, our Florida probate attorneys can walk through the numbers with you. For estate-planning questions raised by the loss — updating your own will and estate plan — those conversations are best had once the immediate probate steps are under control.
The bottom line
A surviving spouse in Florida is not a passive bystander in probate. You hold some of the strongest rights the state recognizes — the elective share, homestead, family allowance, and exempt property — but most of them must be claimed, in writing, within months of being served. Act early, separate your personal claims from your fiduciary duties if you also serve as personal representative, and get the deadlines on a calendar before anything else. The law is generous to surviving spouses who move in time and quiet toward those who wait.
Frequently Asked Questions
How long does a surviving spouse have to file for the elective share in Florida?
Under Florida Statutes section 732.2135, the election must be filed by the earlier of six months after service of the notice of administration or two years after the decedent’s death. Limited extensions exist, but you should treat the six-month window as firm and consult a probate attorney as soon as you are served.
Can a surviving spouse be completely disinherited in Florida?
No. Florida’s elective share guarantees a surviving spouse 30% of the broad ‘elective estate,’ which includes many non-probate assets like certain trust property, joint accounts, and life insurance. The main way this right disappears is through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure and execution requirements.
What happens to the family home if my spouse left it to someone else?
Florida’s homestead protections generally override such a devise when there is a surviving spouse. The spouse typically receives a life estate with a remainder to the descendants, or may elect within six months of death to take an undivided one-half interest as a tenant in common under section 732.401. A petition to determine homestead status is often needed to clear title.
Should a surviving spouse serve as the personal representative?
The spouse usually has first priority to be appointed, but serving is optional. Serving gives you control over administration but imposes fiduciary duties to all beneficiaries and creditors, which can conflict with your personal spousal claims. Many spouses serve while getting independent advice on their own rights; others decline and let another qualified person administer.
What immediate cash help is available while the estate is in probate?
A surviving spouse can request a family allowance of up to $18,000 under section 732.403 to cover living expenses during administration, and can claim exempt property under section 732.402, including household furnishings up to $20,000 in net value and qualifying vehicles. The exempt property claim must be filed within the statutory deadline or it is waived.
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For more on our Florida practice, see our overview of probate in Palm Beach. Morgan Legal Group's affiliated New York office also handles .