When a spouse dies, the survivor often faces probate while still grieving. We guide South Florida surviving spouses and personal representatives through Florida probate under Chapters 731 through 735, choosing the right type of administration and asserting the rights the law provides.
Summary Versus Formal Administration
Florida offers two main probate paths. Summary administration is available when the value of the probate estate subject to administration, less exempt property, does not exceed 75,000 dollars, or when the decedent has been dead for more than two years. It is faster and does not require appointing a personal representative. Formal administration applies to larger or more complex estates and involves appointing a personal representative who gathers assets, pays valid claims, and distributes the estate under court supervision. We assess the estate and recommend the most efficient route for the surviving spouse.
Spousal Rights During Probate
A surviving spouse is not just a beneficiary. Florida law provides a family allowance, a right to exempt property, and the elective share under section 732.2065, equal to 30 percent of the elective estate. The election must be made within strict deadlines, generally the earlier of six months after service of the notice of administration or two years after death. Missing the deadline can forfeit valuable rights, so we move quickly to preserve them.
Homestead in Probate
The decedent’s Florida homestead generally passes outside the probate estate and is protected from most creditors. When a spouse survives, the homestead descends under constitutional rules, and the surviving spouse may take a life estate or elect a one-half interest as tenant in common with the descendants. We file the petition to determine homestead status so title is clear.
Creditor Claims and the Notice to Creditors
In formal administration, the personal representative publishes a notice to creditors. Creditors generally must file claims within three months of publication or be barred. Handling claims correctly protects the estate and the surviving spouse from paying invalid debts.
When Probate May Be Avoided
Assets held in a funded revocable trust, jointly with rights of survivorship, or with valid beneficiary designations usually pass outside probate. Even so, a surviving spouse may still need to assert elective-share or homestead rights, which is why review is worthwhile even when probate seems unnecessary.
Consult a Florida Attorney
Probate deadlines and spousal rights are time sensitive and fact specific. This page is general information, not legal advice. Please consult a licensed Florida attorney promptly after a death to protect the surviving spouse’s rights under current Florida law.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.