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Do I Need To Probate My Deceased Spouse’s Estate?

Oct. 21, 2021

If your spouse dies with or without a will in Florida, is probate necessary?

If the decedent held assets solely in his or her name with no named beneficiary or right of survivorship, the answer is yes. However, Florida also has generous statutes on the books that guarantee the rights of the surviving spouse, even if the decedent dispossessed the spouse in his or her will.

Florida probate law and the rights of inheritance are complicated subjects. Sometimes just figuring out how the decedent’s estate – called the “elective estate” – should be distributed to the surviving spouse and/or children can be a complex calculation.

If you lost a spouse in or around Boca Raton, Florida, and you need help in administering the estate outside of probate or through probate proceedings, contact me at Eric H. Light, P.A. I have more than 20 years of experience in helping people with estate and probate issues.

Assets Not Subject to Probate

It is possible to avoid probate, whether your spouse dies with or without a will, if all assets are held jointly with the right of survivorship or consist of assets with you named as the beneficiary. Assets that pass automatically without the need for probate include:

  • All property held in both of your names with the right of survivorship

  • Property held in tenancy by entireties, unless the property has a named beneficiary in a will

  • Life insurance and retirement plans/savings with you named as the beneficiary

  • Payable on death or transfer on death accounts, such as checking and savings accounts so designated


When one spouse dies without a will, called dying intestate, Florida’s laws of intestacy give the surviving spouse 100 percent interest in the estate if neither spouse had any children. If either spouse has children from a different marriage or relationship, then the surviving spouse receives 50 percent of the estate. All this, of course, will have to go through probate to be finalized.

Homestead Property

Homestead property is considered the family home where the two spouses and any children reside. Even if the decedent names someone else to receive the home upon their death, Florida statutes guarantee that the home will pass as a life estate to the surviving spouse, while the remainder passes to the lineal descendants. When the surviving spouse dies, the home passes to the lineal descendants.

The spouse can choose not to accept the life estate and instead take a one-half interest in the homestead property as a tenant in common with the spouse’s surviving children.

Elective Share

Even if the decedent left a will that disinherited the spouse, the surviving spouse is still entitled to an “elective share” of the “elective estate” of 30 percent.

Calculating the elective estate can be complex. One must take into account all property held, whether jointly with another or solely, all retirement and life insurance policies, even with named beneficiaries other than the spouse, and property transferred in the year prior to death.

Pretermitted Spouse

If a spouse marries with an existing will but does not update it to include the new spouse, that person is considered a “pretermitted spouse” with the same rights as a spouse named in the will. If the spouse dies with no lineal descendants, the pretermitted spouse inherits 100 percent.

Exempt Property

Florida Statutes Section 732.402 allows for the transfer of exempt property. Exempt property is not subject to claims by creditors. Unless the property is devised to others in a will, it will pass solely to the surviving spouse up to a value of $20,000.

Exempt property is tangible personal property, including furniture, appliances, and up to two automobiles. Exempt property will be excluded from the calculation of the value of the elective estate.

Family Allowance

The surviving spouse is also entitled to what is called a “family allowance” of up to $18,000 payable in a lump sum or installments from the decedent’s estate. The spouse must petition the probate court to obtain the allowance.

Bequeaths to Children

If a spouse names his or her children as beneficiaries in their will, Florida law covers how they receive their inheritance and how it is administered. If the inheritance is less than $15,000, then a parent or guardian can receive and manage the money for the child. If the inheritance is more than $15,000, then a guardianship of the property must be established.

Guardianships are expensive and slow to administer. Court approval is generally required for any distribution of money, and the guardian must hire an attorney to help in the administration, driving up costs. A better bet is to set up a living trust, which avoids the need for a guardianship.

Prenuptial and Postnuptial Agreements

If the spouses agreed to a prenuptial or postnuptial agreement, the provisions of those would more often than not supersede any of the spousal allowances and guarantees described above.

How Legal Counsel Can Help

As you can see, there are several allowances, guarantees, and exemptions involved with inheritance law and probate in Florida. Depending on the assets of your deceased spouse, you may on occasion be able to avoid probate, but even the guarantees, such as homestead property rights, require probate court approval.

If you’ve recently lost a spouse in or around Boca Raton, Florida, and need to understand your rights and obligations, contact me at Eric H. Light, P.A. I have the experience and knowledge necessary to navigate the probate process and help you obtain everything to which you're entitled.