By Lumsden Law | Estate Planning & Probate Experts 

Many Floridians believe that a surviving spouse automatically inherits everything when their partner passes away—but the reality isn’t so straightforward. Florida’s inheritance laws are nuanced, shaped by whether a will exists, how property is titled, and the structure of the family involved. 

At Lumsden Law, we guide spouses through the confusion of probate and estate law with clarity and compassion. Here’s what every surviving spouse in Florida needs to know about their legal rights. 

1. Automatic Inheritance vs. Probate – What Transfers Immediately 

Certain types of property bypass probate and transfer directly to the surviving spouse: 

Jointly Owned Property 

If property is titled as joint tenancy with right of survivorship or tenancy by the entirety, ownership automatically transfers to the surviving spouse. This typically includes: 

• Joint bank accounts 

• Co-owned vehicles 

• Real estate titled in both spouses’ names 

These assets are considered non-probate, meaning they don’t require court approval to change hands—saving time, money, and emotional energy during an already difficult time. 

2. Florida Homestead Laws: Your Right to the Family Home 

Florida’s homestead laws offer important protections for surviving spouses, especially regarding the primary residence: 

• Jointly Owned Homestead: Transfers automatically to the surviving spouse without probate. 

• Sole Ownership: If only the deceased spouse was on the deed, the surviving spouse is typically granted a life estate—the right to live in the home for life. 

• No Minor Children: The surviving spouse may inherit the home outright. 

• Minor Children Present: The spouse retains a life estate, but full ownership transfers to the children after the spouse’s death. 

Homestead laws can override the will in some cases—unless the spouse signed a valid waiver before death. 

3. No Will? Here’s What Florida’s Intestacy Law Says 

If a spouse dies without a will (intestate), Florida’s intestate succession rules determine how the estate is divided: 

• No Descendants: The surviving spouse inherits the entire estate. 

• All Children Shared with Spouse: The spouse still inherits everything. 

• Children from Another Relationship: The estate is split—50% to the surviving spouse and 50% to the deceased’s children. 

Blended Families 

Blended families create added complications. Children from previous relationships are legally entitled to their share. However, stepchildren do not inherit unless explicitly included in a will. 

4. Disinherited? Florida’s Elective Share Offers a Safety Net 

Even if the will leaves a spouse out or grants them very little, Florida law offers protection through the elective share: 

• A surviving spouse can claim 30% of the “elective estate,” which includes most assets—even some placed in trusts. 

• This must be filed during probate, and calculations include life insurance, retirement accounts, and property held in certain legal arrangements. 

The elective share helps ensure that no spouse is unfairly disinherited. 

5. Florida Is Not a Community Property State—But Marital Assets Still Matter 

Florida recognizes a distinction between: 

• Marital Property: Anything acquired during the marriage 

• Separate Property: Assets owned before marriage, or gifts and inheritances received individually 

Knowing how your assets are classified is essential, particularly in second marriages or when a prenup is in place. 

6. Other Financial Protections for Surviving Spouses in Florida 

Florida law offers additional ways to support a surviving spouse: 

• Exempt Property: Includes household items and personal effects (up to $20,000) that pass outside probate and are protected from creditors. 

• Vehicles: Up to two family vehicles used for daily transportation may pass to the surviving spouse without court oversight. 

• Family Allowance: A $18,000 allowance may be granted for living expenses during probate (must be approved by a judge). 

• Pretermitted Spouse Rights: If a spouse marries after a will is made and the will is not updated, they may still inherit unless specifically waived. 

Get the Legal Support You Deserve 

Florida’s inheritance laws are complex—but your peace of mind doesn’t have to be. At Lumsden Law, we help surviving spouses claim what they’re legally entitled to, while providing strategic, compassionate support throughout probate or estate administration. 

📞 Contact Lumsden Law today to protect your rights and secure your future.