Florida Laws Regarding Wills of Married Couples

by Beverly Bird
Florida probate laws may protect your spouse even if you don’t.

Florida probate laws may protect your spouse even if you don’t.

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Probate is a period of time during which your affairs are sorted after your death to make sure that your assets are transferred to their proper beneficiaries and that your debts are paid. In Florida, your estate goes through this process whether or not you leave a will, according to the Florida Bar. The difference is that if you draw up a will, you can name your beneficiaries and your personal representative, the person you want to oversee the details of probate.

Protecting Each Other

When married couples own property together, attorney James Martin of St. Petersburg advises that they consider holding the title to it as “tenants by the entirety” or “jointly with full rights of survivorship.” The first means that you and your spouse are a single legal entity; the second means that if one of you dies, the other is entitled to his share. In either case, property passes directly to the surviving spouse in the event of the other’s death, bypassing probate of the decedent’s will. Assets held in any other way are part of the decedent’s estate and are vulnerable to creditors with claims against the estate, according to Martin.

State’s Position

Florida does not allow you to totally disinherit your spouse, according to the Florida Bar. If you omit him from your will, he is nonetheless entitled to claim an elective share from your probate estate, usually 30 percent of all assets remaining after payment of taxes, debts and expenses. Furthermore, you cannot bequeath your home to anyone other than your surviving spouse, according to Martin.

Divorce and Remarriage

Under Section 732.301 of the Florida Statutes, if you remarry but neglect to redo your will to provide for your new wife, she is considered to be “pretermitted,” or unintentionally overlooked. Therefore, she can also make a claim for an elective share of your estate. According to Martin, her share would be equal to what she would have received if you had died intestate, or without a will. This may be more or less than you would want her to have.

Applicable Intestate Laws

If you die intestate, without a will, Florida still protects your spouse. Under Section 732.102 of the Florida Statutes, if you have no children together, he gets your entire estate. If you do have children together, he gets the first $60,000 of your estate and half of whatever remains. Your children share the other half if your surviving spouse is also their parent. If you have a child from another marriage, she gets half of your estate, and your children -- both those you had together and yours from a prior relationship -- share the other half.

Elective Shares

The Florida Bar cautions that the ultimate definition of what comprises an elective share of your particular estate can be intricate. While it is not always necessary to retain an attorney to draw up your will, consult with one prior to doing so on your own to make sure you have an accurate understanding of what your estate entails and how the law affects it.