How Marriage Affects Probate in Florida
By: Barry E. Haimo, Esq.
March 24th, 2022
Have you given some thought to how your spouse will be cared for in your estate plan? For many people, it’s important that their partner has financial security if something were to happen to them. After all, you don’t want to leave them holding a veritable hand grenade! Fortunately, couples in Florida benefit from several legal protections that relate to estate planning, and specifically marriage and probate.
Probate is the process by which assets in an estate are legally transferred to the beneficiaries after the death of a decedent. Unfortunately, it can be a long, arduous process that adds time, costs, and stress for the spouse and heirs of an estate.
But under Florida probate code, the transfer of assets and property to a surviving spouse is much easier. Marriage, as it relates to the administration of an estate, helps sidestep the standard probate process through a handful of various statutes.
Let’s take a closer look at how these statutes relate to marriage and probate in Florida.
One protection for married couples relates to their “homestead,” or primary residence. Under Florida Statute 732.4015, a homestead property cannot be left to someone in your Last Will and Testament contrary to the statutory beneficiaries. This is to ensure that a surviving spouse or minor child will be guaranteed some or all of the property, and that it will not pass into the hands of someone outside the family during probate.
The exception to this statute is if there is no surviving spouse or child(ren), the property can be left to whomever the decedent designates.
If marriage affords couples legal protections from probate in Florida, divorce ends them. Florida laws are strict in regard to the effect of divorce on estate proceedings under Statute 732.507(2).
Under this ruling, any assets left to a surviving spouse in a Last Will and Testament become null and void upon divorce. This means your ex-husband or wife are not entitled to any of your estate upon your death unless you specifically designate them as beneficiaries after divorce. This is one reason why it is so important to make sure your wishes are clearly articulated in your estate plan and to update it frequently with a knowledgeable estate attorney.
In some cases, a married person will die without a Last Will and Testament or estate plan of any kind. When this happens, the estate is deemed “intestate,” which means that any assets will pass in accordance with Florida law. In Florida, this means the surviving spouse may stand to inherit any and all assets by default.
The one exception to this rule is in the case of blended families, when spouses have children from previous relationships. If an estate is intestate in the case of a blended family, Florida Statute 732.102 will apply:
- The surviving spouse will receive half of the estate
- The remaining amount of the estate will be divided up among children
Pretermitted Spousal Share
It’s important to understand the flip side of the above scenario as well: when a person gets married after making a will, neglects to update it, and the spouse survives the decedent. In this case, the surviving spouse will receive a spousal elective share as defined in 732.201:
“The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share. The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.”
This is true unless one of the following conditions applies under Florida Statute 732.301:
- A prenuptial or postnuptial agreement provides for the spouse or includes a waiver by the spouse
- The will provides for the spouse
Tenancy by the Entirety
In Florida, if a married couple holds the title to equal shares of a property together, they qualify to own the property as “tenants by the entireties.” This joint ownership provides a benefit known as “right of survivorship,” wherein a surviving spouse immediately receives their deceased partner’s half of the property and avoids probate completely. In order to ensure your property is filed as tenancy by the entirety, you should consult with your estate planning attorney accordingly.
You may feel apprehensive about estate planning, but it doesn’t have to be this way. Haimo Law can help you craft the perfect estate plan to meet your needs and goals in Florida.
Getting caught without an estate plan can mean significant taxes, chaos, court, costs, and conflict for your loved ones and heirs. Contact us to start planning today.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
YOU ARE NOT OUR CLIENT UNLESS WE EXECUTE A WRITTEN AGREEMENT TO THAT EFFECT. MOREOVER, THE INFORMATION CONTAINED HEREIN IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. EACH SITUATION IS HIGHLY FACT SPECIFIC AND EXCEPTIONS OFTEN EXIST TO GENERAL RULES. DO NOT RELY ON THIS INFORMATION, AS A CONSULTATION TO UNDERSTAND THE FACTS AND THE CLIENT’S NEEDS AND GOALS IS NECESSARY. ULTIMATELY WE MUST BE RETAINED TO PROVIDE LEGAL ADVICE AND REPRESENTATION. THIS INFORMATION IS PROVIDED AS A COURTESY AND, ACCORDINGLY, DOES NOT CONSTITUTE LEGAL ADVICE.