As a surviving spouse, you are provided certain protections by the Florida Constitution and Florida Statutes. In addition to the protection of the homestead provided by Florida law and covered on a separate page, surviving spouses have the following rights under Florida law:
If the decedent was domiciled in Florida at the time of their death, their surviving spouse, or the children, if there is no surviving spouse are entitled to claim as exempt from the claims of creditors the following property:
In order to claim property as exempt, a Petition for Determination of Exempt Property must be filed on or before the later of date that is four (4) months after date of service of the Notice of Administration OR forty (40) days after termination of any proceedings involving construction, admission to probate, or validity of the will or any other matter affecting any part of the estate.
Additionally, property determined as exempt is excluded from the value of the estate before residuary, intestate, pretermitted or elective shares are determined.
If the surviving spouse was domiciled in Florida at the time of their death, the surviving spouse and the decedent’s lineal heirs that were supported or that the decedent had an obligation to support are entitled to $18,000. It will be paid to the surviving spouse for the use and support of the spouse and lineal heirs. Like the exempt property aforementioned, the family allowance is not chargeable against any benefit or share passing to the spouse or the lineal heirs.
An elective share is thirty (30) percent of a decedent’s estate. F.S.A. § 732.2035 defines what is included in an elective share computation, and applies to living trusts, joint ownership property with survivorship rights, payable on death property such as bank accounts and investment accounts, retirement plan benefits, annuities and the cash value of life insurance to name a few.