The short answer is no. A surviving spouse is entitled to a portion of a deceased spouse’s estate even if the deceased has a valid will or trust leaving nothing to the spouse (Florida Statute 732.201). A surviving spouse is entitled to what is known as an “elective share” of the deceased’s estate. A surviving spouse may choose to inherit the “elective share” of the estate. The “elective share” is equal to 30% of the “elective estate.”
According to Florida Statutes Section 732.2035, these are some, not all, of the assets included in the “elective estate”:
- The decedent’s probate estate.
- The decedent’s interest in property which constitutes the protected homestead of the decedent.
- The decedent’s ownership interest in accounts or securities registered in “Pay On Death,” “Transfer On Death,” “In Trust For,” or coownership with right of survivorship form. For this purpose, “decedent’s ownership interest” means, in the case of accounts or securities held in tenancy by the entirety, one-half of the value of the account or security, and in all other cases, that portion of the accounts or securities which the decedent had, immediately before death, the right to withdraw or use without the duty to account to any person.
- The decedent’s fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety. For this purpose, “decedent’s fractional interest in property” means the value of the property divided by the number of tenants.
All in all, a surviving spouse will be entitled to roughly 30% of the deceased spouse’s estate. However, there are time limits on a surviving spouse’s right to choose their “elective share.” For more information, feel free to call, email or attend one of Cramer Law Center’s monthly Truth About Estate Planning workshops.