Losing a spouse is an incredibly difficult experience. In addition to the emotional toll, you need to address several legal matters. As a surviving spouse in Florida, it's essential to understand your rights and how to protect yourself during this challenging time.
When a spouse dies without a will in Florida, the surviving spouse has certain rights under the laws of intestate succession. Whatever happens, the surviving spouse should receive money and real estate from the estate when available.
Because these situations can be complex, contacting a probate attorney is essential, especially if you believe someone is violating your rights. Probate court can be difficult and frustrating, and it can be challenging to advocate for yourself. An experienced attorney will fight to protect your rights.
It does not matter what one spouse wishes to do with their property once they die. They do not have a legal right to entirely disinherit a spouse in Florida, unless there is a valid prenuptial agreement. If you are the surviving spouse, you have certain rights that you can exercise when you learn that your spouse has left you nothing or passed away without a will.
You should contact a Vero Beach probate lawyer as soon as possible to learn how Florida law may protect you as a surviving spouse. Laws regarding inheritance, property rights, and other legal matters can be complicated. A lawyer can help you through the probate process and ensure you receive what you deserve.
Additionally, an attorney can take your case to court if there has been a violation of your rights under Florida law. Time is of the essence because the assets that you should receive may go to waste or might be in someone else's hands.
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How a Spouse Has Protection When Their Spouse Dies Without a Will
When a spouse dies without a will, this is known as intestate. Since there is no legal document dividing the property, Florida law takes effect and determines who gets what.
First, the court will appoint a personal representative to handle the estate's affairs. In most cases, the surviving spouse will be the personal representative. If they cannot serve in that role, or if the court finds other reasons, one of the children can take over as the personal representative.
Florida law determines the percentages that each heir and beneficiary will receive without the will. When there is a surviving spouse but no children or grandchildren belong to the deceased spouse, there is no question about where the property goes. The spouse will receive 100 percent of the estate's property. The spouse will also get 100 percent of the estate if the only children and grandchildren descend from both spouses.
The Distribution of Assets Changes When the Deceased Person Has Their Own Heirs
The situation changes when there is a surviving spouse, and the deceased spouse has children and grandchildren of their own. Then, the surviving spouse and the other descendants will each receive their share of the estate. The surviving spouse will get 50 percent of the estate.
However, only certain things are part of the estate, and some property passes through the beneficiary outside the probate process. Life insurance and retirement accounts can name beneficiaries, and one cannot remove their spouse as a beneficiary from a retirement account outside the divorce process. Usually, the spouse is also a beneficiary of the proceeds of a life insurance policy.
Equitable Distribution Laws Still Apply to Marital Property
One spouse cannot cut the other out and pass their property to others without a spouse getting their share. The assets of these accounts and the proceeds of specific policies are marital assets. Florida uses the equitable distribution law to determine how much property each spouse gets when the marriage ends. One cannot use the designation of beneficiaries as a way around the laws of equitable distribution to deny the spouse their share of the assets. The spouse may contest it in court if the other spouse left all assets in beneficiary accounts to others.
One Spouse Cannot Disinherit the Other Through Their Will
Even when there is a will, one spouse cannot completely cut the other out of the picture. Again, this is a backdoor way around the state's equitable distribution laws, and a spouse does not ever go away empty-handed. State law does not allow a spouse to take property that is part of the marital estate and move it outside through the use of the will.
In most cases, the spouses have worked together on an estate plan, and the goal is to take care of the surviving spouse. However, the law protects a spouse if that is not the case.
If one spouse learns that the other has left a will that completely cuts them out or leaves them a minimal share of the property, they have rights. Under Florida law, one cannot disinherit their spouse through a will. The spouses have a legal relationship and do not have the same status as a child or other family members. If the spouses are divorced or have another legal agreement, that is the only way to disinherit a spouse.
A Spouse Can Have an Elective Share of the Estate
One spouse has the right of election, whereby they can get a minimum percentage of property, even when there is a will. The elective estate goes far beyond an estate that passes through probate. The elective rights attach to the accounts discussed above, where a named beneficiary gets paid upon death. For example, if one spouse has an investment account with beneficiaries, the surviving spouse can elect to receive a share, even if they are not a beneficiary.
The elective estate can include:
- The decedent's probate estate
- The decedent's interest in property passing by right of survivorship at death
- Property held in revocable trusts
- Specific property transfers the decedent made up to one year before death
- Death benefits paid under retirement plans
- Joint bank accounts and "pay on death" accounts
- The decedent's interest in the cash surrender value of life insurance policies
- Property passing directly to the surviving spouse
Thus, the probate estate is only part of the equation when calculating the minimum amount the surviving spouse is due to receive under Florida law.
How the Elective Share Works Under Florida Law
In Florida, the minimum percentage that a spouse will receive is 30 percent of the overall estate. If the couple acquired property during the marriage, it becomes part of the marital assets. Then, the spouse can receive 50 percent of that property. The spouse has the legal right to elect against the will, and they can receive their 30 percent share, even if the deceased spouse left the property to others. If the spouse elects against the will, the 50 percent of the marital assets do not count against the 30 percent share they can elect to receive. In other words, both calculations still come into play.
Note that the 30 percent share does not apply to each individual asset. The 30 percent total applies to the overall estate. Thus, there may be issues concerning how to value each individual asset and which assets the spouse may get as part of their elective share. The elective share can create many legal complexities and areas for disputes and disagreements.
Then, the surviving spouse can receive 30 percent of the estate's net value. The decedent may have had liabilities, which subtract from the estate's overall value. The 30 percent total reflects the overall value once the creditors who have a claim against the estate get reimbursed. Otherwise, the surviving spouse will have disproportionate assets that stretch beyond their 30 percent share. It can take some time to tabulate the final value of the estate to reach the 30 percent figure.
As you can see, these calculations and formulas are highly complicated. Always have a probate lawyer representing your rights.
The Surviving Spouse Can Get an Allowance While Legal Cases Are Pending
Any probate disputes may take some time to resolve. If the deceased spouse disinherited their spouse, the living spouse must go to court to fight to get their share of the assets. In the meantime, the spouse may struggle with their own expenses, especially if they are not working.
Florida law allows temporary relief for a spouse while the court determines the case's outcome. The spouse can claim a family allowance from the estate to help cover their expenses throughout the case and can claim up to $18,000. Unfortunately, $18,000 is not a lot of money, especially since cases can take more than a year to make their way through probate court. The total does not consider inflation, meaning the amount stays the same even as costs have soared throughout the economy. The amount remains the same whether it takes months or years for the spouse to get their share of the property.
The Surviving Spouse Gets a Life Estate in Real Property
Further, the spouse also has some rights to real estate. The surviving spouse will receive a life estate when the real estate involves a home. They will have a stake in the property for the rest of their life, which allows them to continue living there. In other words, the decedent's children can not eject the surviving spouse from the property where they were living. Once the surviving spouse passes away, their interest in the property will pass to the beneficiaries. With a life estate, the surviving spouse will still have obligations and restrictions on using the property because someone else may have an interest in the property.
The surviving spouse has another option: to take a ½ interest in the property through a tenancy in common with their spouse's descendants. Either way, no one can make the spouse leave the
property unless they potentially violate the terms of their tenancy by not properly caring for it.
Why You Need a Probate Attorney for Your Case
If you are the surviving spouse, and you are in a position where you need to exercise your elective rights, you are already in a difficult position. The deceased spouse's children are likely doing whatever they can to keep you from getting what you deserve and to make your life more difficult. Hopefully, you had the chance to resolve these issues before your spouse passed away through a series of legal agreements. If not, you face tough challenges seeking to get what you deserve.
When money and assets are at stake, you should hire an experienced probate attorney to protect your rights. Your lawyer can negotiate with the representatives of the other beneficiaries to solve any disputes. The goal is to remain out of court because probate litigation is expensive and complicated, and nobody really wins. Often, people are so well dug into their positions that there is no alternative but a final and conclusive legal battle. Then, you must have an attorney representing your position in probate court.
Another crucial aspect that a lawyer can help with is the settlement of debts and claims against the estate. They can guide you through the probate process and ensure that all outstanding debts get settled appropriately, leaving you in a more secure financial position.
Furthermore, a lawyer can advise on other important matters, such as the transfer of assets, taxation implications, and any potential legal challenges. By seeking legal counsel, you can have peace of mind knowing that your lawyer is protecting your rights and interests during this difficult time.
The time to contact a probate attorney is as soon as you realize there is a potential dispute or your spouse has tried to disinherit you through their will. Protecting your rights as time passes becomes progressively more challenging without the legal help you need. An attorney can review your situation and provide interim strategies to protect your rights while you work towards a more permanent solution to the problem.
Losing a spouse is undoubtedly a challenging and overwhelming experience. Still, by knowing your rights and having an experienced Vero Beach probate and real estate attorney, you can gain peace of mind knowing that your attorney will safeguard your legal rights as a surviving spouse.