Florida’s Strong Family Protections
Florida law goes further than most states in protecting surviving spouses and children. When a Florida resident dies, certain rights automatically arise for the decedent’s immediate family — regardless of what the will or trust says.
These rights are found primarily in Chapter 732, Florida Statutes (The Florida Probate Code), and in Article X, Section 4 of the Florida Constitution, which protects the family home (homestead).
At Clause Law Group, we help families throughout Stuart, Martin County, St. Lucie County, and Palm Beach County understand and assert these protections during the estate process.
1. Homestead Rights
If the decedent owned a qualifying homestead, the surviving spouse and children receive constitutional protection in that property.
Under Fla. Const. art. X, § 4(c) and Fla. Stat. § 732.401:
- If survived by a spouse and minor child, the home cannot be devised to anyone else.
- The spouse receives a life estate, and the minor children receive the remainder interest.
- If there is a spouse but no minor child, the spouse can choose between a life estate or a 50% ownership interest in the property.
These protections ensure the surviving spouse and children cannot be disinherited from the family home.
2. Elective Share
A spouse in Florida cannot be completely cut out of a will. Even if the will or trust leaves nothing to them, the spouse may claim an elective share — 30% of the elective estate — under Fla. Stat. § 732.201–732.2155.
The elective estate includes not only probate assets, but also many non-probate assets like jointly held property, payable-on-death accounts, and certain trust interests.
The spouse must make the election within six months of service of the notice of administration or within two years of death, whichever comes first (§ 732.2135).
Clause Law Group assists surviving spouses in timely filing this election and calculating the full elective share to ensure no assets are overlooked.
3. Family Allowance
The surviving spouse and certain dependent heirs may receive a family allowance of up to $18,000 from the estate under Fla. Stat. § 732.403.
This allowance is meant to help with living expenses during the probate process and can be paid in a lump sum or in installments. It is in addition to any inheritance or elective share and has priority over most creditor claims.
4. Exempt Property
Florida exempts certain personal property from creditor claims, ensuring it stays with the surviving spouse or children.
Under Fla. Stat. § 732.402, exempt property includes:
- Household furniture, furnishings, and appliances up to $20,000 in value;
- Two motor vehicles used regularly by the decedent or family;
- Qualified tuition programs or education savings accounts; and
- Some death benefits payable to the family.
These exemptions protect a family’s most essential belongings.
5. Pretermitted Spouses and Children
If a person makes a will and later marries or has a child but never updates the will, the surviving spouse or child may still inherit as pretermitted heirs under Fla. Stat. §§ 732.301–732.302.
- A pretermitted spouse generally receives the same share they would have received under intestacy laws.
- A pretermitted child is entitled to a share equal to what they would have received if the decedent had died without a will, unless the omission was intentional.
These provisions prevent unintentional disinheritance when families grow or change.
6. Support for Minor Children
Minor children have special status under Florida law. Even if the decedent had other beneficiaries, minor children’s homestead rights and inheritance protections cannot be waived or limited by will.
Courts take special care to protect minors’ interests, sometimes appointing a guardian ad litem to represent them during probate proceedings.
7. Waiving Spousal Rights
A surviving spouse can voluntarily waive certain rights (such as the elective share or homestead interest) through a valid pre-nuptial or post-nuptial agreement under Fla. Stat. § 732.702.
These waivers must be:
- In writing;
- Signed in the presence of two witnesses; and
- Executed voluntarily with full financial disclosure.
Clause Law Group helps clients draft and review these agreements to ensure they are enforceable and equitable.
Final Thoughts
Florida’s laws strongly favor family preservation. Surviving spouses and children have built-in protections that supersede most contrary provisions in a will or trust.
At Clause Law Group, we help families understand their rights, calculate elective shares, claim allowances, and protect the homestead — ensuring loved ones are not left vulnerable after a loss.
Whether you’re a surviving spouse, child, or fiduciary managing an estate, our team provides clear, compassionate, and knowledgeable guidance through every step.
