As an estate planning lawyer, I sometimes have a client ask whether they are entitled to inherit from their spouse. In other words, can their spouse cut them out of an inheritance? For the most part, the answer is that one spouse cannot be “written out” altogether from their spouse’s estate. Unless there’s a Pre-Nuptial Agreement in place, the surviving spouse has certain rights that arise as a matter of Florida law.
Under Florida law, there are a couple of ways that a spouse has inheritance rights. First, there is the right which arises regarding the homestead. If a married person dies owning a home as their primary residence (and titled in their sole name), the surviving spouse will have certain rights to the home depending on whether there are children. If there are children of the deceased spouse but those children are not in common with the surviving spouse, then the surviving spouse will get a life estate in the home and the children will get the remainder interest. If there are children of the deceased spouse in common with the surviving spouse, then the surviving spouse will get the home. This result will happen regardless of whether the deceased person’s Will attempted to leave the home to someone else.
Another way the surviving spouse has a right to inherit is through what is called the “spousal elective share.” Under this statutory right, a surviving spouse may elect to receive thirty percent (30%) of the elective share estate rather than what the deceased spouse’s Will left them. This right is usually elected by the surviving spouse when the thirty percent amounts to more than the spouse would have received under the Will.
An example may help explain the spousal elective share. Let’s say Pete is married to Carla and in his Will, Pete devises his estate as twenty percent to Carla and twenty percent to each of Pete’s four siblings. In this example, assume that essentially all of Pete’s assets will go through probate and none will pass outside probate. In that case, Carla would likely exercise the spousal election because she’ll get more. The thirty percent elected is greater than the twenty percent devised.
Another way that the elective share might be exercised by Carla would be when there are significant assets passing outside the probate estate. Consider a situation where Pete’s Will leaves Carla one hundred percent of the probate estate which is comprised of some stock worth $40,000 and a certificate of deposit valued at $20,000. Pete also owned a bank account valued at $250,000. This account names Pete’s sister, Tammy, as the POD designee. In this case, since the account has the POD designation, that asset will pass outside probate but the funds are still part of what will be considered in determining the elective share estate. If Carla takes the one hundred percent left to her under the Will, she gets $60,000. However, if she makes the spousal election, she gets $93,000-thirty percent of the elective share estate which means thirty percent of the probate assets and the non-probate assets.
When a spouse dies, there are certain time limitations that apply to making an elective share. A surviving spouse should consult an experienced probate attorney as soon as possible to assess their rights.
