In Florida, a surviving spouse must act within strict statutory windows to claim the rights probate gives them: the elective share must be elected within roughly six months of receiving the notice of administration (or two years of death, whichever is earlier), homestead and exempt-property protections must be asserted in the estate file, and the spouse’s “family allowance” and intestate share don’t enforce themselves. Miss the deadlines and the rights are gone, no matter how sympathetic the situation. The single most important thing a widow or widower can do is read every document the personal representative sends and respond on the clock.
I’ve sat across from too many surviving spouses who assumed Florida law would simply protect them. It does protect them, generously in fact, but the protection is structured as a set of elections and claims you have to make. Below is what an experienced South Florida probate lawyer watches for, in the order it usually matters.
The first signal: the Notice of Administration
When a will is admitted to probate (or an intestate estate is opened), the personal representative serves a document called the Notice of Administration under Florida Statute § 733.212. For a surviving spouse, this is the starting gun. It tells you the estate exists, who is in charge, and—critically—that you have a limited time to object to the will’s validity, to challenge the personal representative’s qualifications, or to assert your spousal rights.
The notice triggers a three-month window to file most objections, including a challenge to the validity of the will itself or to venue and jurisdiction. If you believe the will was the product of undue influence, was improperly executed, or was signed when your spouse lacked capacity, that clock is running. Florida courts are unforgiving here; an objection filed on day ninety-one is generally too late.
This is also the moment surviving spouses who came through a guardianship before death need to be especially alert. If your spouse spent their final years under a guardianship—sometimes a contested one—the will or trust signed during that period invites scrutiny. The transition from a guardianship file to a probate file is exactly where competing heirs surface, and exactly where a spouse’s rights are most likely to be quietly overlooked.
The elective share: Florida’s anti-disinheritance rule
Florida does not let a person fully disinherit a spouse. Under Florida Statutes §§ 732.201–732.2155, a surviving spouse is entitled to an elective share equal to 30% of the “elective estate.” The elective estate is broader than the probate estate—it reaches certain non-probate transfers like revocable trusts, payable-on-death accounts, jointly held property, and some lifetime gifts. The point of casting the net that wide is to stop someone from disinheriting a spouse by simply moving assets out of the will.
Here’s the catch that costs people their rights: the elective share must be affirmatively elected. Under § 732.2135, the election must be filed with the court within the earlier of:
- Six months after service of the Notice of Administration on the surviving spouse, or
- Two years after the decedent’s date of death.
The court can extend the deadline in limited circumstances if you ask before it expires and show good cause, but you cannot resurrect an election after the window closes. I tell every spouse the same thing: even if you think you’re better off under the will, run the elective-share math early. Sometimes 30% of the elective estate dwarfs what the will leaves you, and the only way to capture that difference is to elect in time.
When the elective share is worth electing—and when it isn’t
The elective share is not automatically the better deal. If your spouse left you the bulk of the estate outright, electing may actually reduce what you receive, and the calculation involves crediting property you already received toward the 30%. This is a genuine analysis, not a reflex. A careful probate attorney models both paths—what you take under the will or intestacy versus what you’d net from the elective share after credits—before recommending an election.
Homestead: the protection that can override the will
Florida’s homestead protection is one of the most powerful—and most misunderstood—rights a surviving spouse has. The Florida Constitution (Article X, § 4) and Florida Statute § 732.401 restrict how a homestead can be devised when the decedent leaves a spouse or minor children. A decedent generally cannot simply leave the marital home to someone other than the spouse if there is a surviving spouse or minor child; an attempt to do so is invalid as to the homestead.
When that happens, the surviving spouse receives either a life estate in the homestead, with a remainder to the descendants, or—and this is the part many spouses don’t know—the spouse may elect to take a one-half (50%) tenancy-in-common interest instead of the life estate. That election under § 732.401(2) also has a deadline: it must be made within six months of the decedent’s death, and it must be filed in the probate proceeding. The half-interest election is frequently the smarter choice, because a life estate saddles the spouse with taxes, insurance, and maintenance while sharing none of the appreciation upside with the remaindermen.
Homestead is also why surviving spouses should never let anyone pressure them into “just signing” the house over during administration. Once you understand the protection, you negotiate from strength.
Exempt property and the family allowance
Two more rights exist specifically to keep a surviving spouse from being left destitute while the estate is tied up. They are small relative to homestead and the elective share, but they are real money and they have their own deadlines.
- Exempt property (§ 732.402): The surviving spouse (or, if none, the decedent’s children) may claim up to $20,000 in household furniture, furnishings, and appliances, plus up to two motor vehicles used regularly by the decedent or immediate family, and certain qualified tuition and death-benefit accounts. This property passes outside the claims of most creditors. But the claim must be filed within four months after service of the Notice of Administration or 40 days after termination of any will-contest proceeding, whichever is later.
- Family allowance (§ 732.403): While the estate is being administered, the court may award the surviving spouse (and lineal heirs the decedent supported) a reasonable allowance of up to $18,000 for maintenance, payable in a lump sum or installments. This allowance is in addition to homestead, exempt property, and the spouse’s share—and it does not reduce them.
These two items routinely get left on the table because no one tells the spouse to ask. A practiced probate lawyer claims them as a matter of course.
What happens when there’s no will at all
If your spouse died intestate—without a valid will—Florida’s intestacy statute (§ 732.102) decides your share, and the surviving spouse fares well:
- If the decedent left no descendants, the spouse takes the entire intestate estate.
- If all descendants are also descendants of the surviving spouse, and the spouse has no other descendants, the spouse again takes the entire estate.
- If there are descendants from another relationship on either side (a blended family), the spouse takes one-half and the descendants share the other half.
Even in an intestate estate, the spouse must still open or join the administration, assert homestead and exempt property, and watch for creditor claims. Intestacy gives you a share; it doesn’t hand it to you.
Creditor claims and the spouse’s exposure
Once the estate is open, creditors have a window—generally three months from first publication of the notice to creditors, or 30 days from service if they were a known or reasonably ascertainable creditor—to file claims under § 733.702. A surviving spouse should pay close attention here. Improper or untimely claims can and should be objected to within 30 days, and homestead and exempt property are largely shielded from these claims. Letting a stale or inflated claim slide through directly shrinks what reaches the spouse.
When the spouse and the personal representative are at odds
Many of the hardest cases I handle involve a surviving spouse who is not the personal representative—often a second spouse, with adult children from a first marriage running the estate. The interests collide immediately: the children want to preserve the inheritance the will gives them, and the elective share, homestead, and family allowance all cut into that. This is precisely the scenario that emerges out of a contested guardianship, where battle lines were drawn long before the death.
If you’re a surviving spouse in that position, do not negotiate alone. Ask for an accounting, verify that the elective estate calculation includes the non-probate assets it’s supposed to reach, and file your elections on time regardless of how cooperative the personal representative seems. The principles a New York court applies when a mirror Florida’s logic, and the broader mechanics of follow a similar arc; the deadlines and percentages differ, but the lesson is identical—act early and document everything.
A practical timeline for the surviving spouse
- Within days of death: Locate the will, secure the home, and don’t disclaim or transfer anything until you understand your homestead rights.
- By 6 months after death: Make the homestead half-interest election (§ 732.401) if you want it.
- Within 3 months of the Notice of Administration: File any will contest, venue, or qualification objections.
- Within 4 months of the Notice: Claim exempt property (§ 732.402).
- Within 6 months of the Notice (or 2 years of death): File the elective-share election if it benefits you.
- Throughout administration: Request the family allowance, monitor creditor claims, and review every accounting.
None of these rights are automatic, and the deadlines do not pause for grief. For a deeper look at the documents involved, see our overview of Florida wills, and if your situation involves real property in Florida specifically, the Morgan Legal team’s can walk you through the local court’s procedures.
The bottom line
Florida gives surviving spouses some of the strongest protections in the country—but it gives them as deadlines, not gifts. The elective share, homestead election, exempt property, and family allowance each have to be claimed, and each has its own clock. If you are a surviving spouse anywhere in South Florida and an estate is opening, the safest move is to have a probate attorney calendar every deadline and model the elective-share math before you sign anything. When you’re ready, reach out and we’ll map your specific situation against these timelines.
Frequently Asked Questions
How long does a surviving spouse have to claim the elective share in Florida?
Under Florida Statute § 732.2135, the elective share must be elected by the earlier of six months after the surviving spouse is served with the Notice of Administration, or two years after the decedent’s date of death. A court may extend this only if you request more time before the deadline passes and show good cause.
Can a Florida spouse be completely disinherited by a will?
No. Florida’s elective-share statute entitles a surviving spouse to 30% of the broadly-defined elective estate, which reaches many non-probate assets such as revocable trusts and POD accounts. Homestead protections under Article X, § 4 of the Florida Constitution also restrict devising the marital home away from a surviving spouse or minor children. The protection must, however, be actively elected.
What is the homestead half-interest election?
When a homestead cannot be freely devised because of a surviving spouse, § 732.401 normally gives the spouse a life estate with remainder to the descendants. Instead, the spouse may elect to take an undivided one-half tenancy-in-common interest. That election must be made within six months of the decedent’s death and filed in the probate proceeding; it often beats a life estate because it shares in future appreciation.
What does a surviving spouse receive if there is no will?
Under Florida’s intestacy statute § 732.102, the spouse takes the entire estate if the decedent had no descendants, or if all descendants are shared and the spouse has no other descendants. In a blended-family situation where either party has descendants from another relationship, the spouse takes one-half and the descendants share the rest.
What are exempt property and the family allowance?
Exempt property (§ 732.402) lets the spouse claim up to $20,000 in household goods plus up to two vehicles, free of most creditor claims, but it must be claimed within four months of the Notice of Administration. The family allowance (§ 732.403) is up to $18,000 the court can award for the spouse’s maintenance during administration, in addition to other rights.
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For more on our Florida practice, see our overview of probate in Palm Beach. Morgan Legal Group's affiliated New York office also handles .
