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Florida Intestate Estates: Spousal Shares

Written by on Sep 12, 2011| Posted in: Estate Litigation

New Changes to Spousal Shares in Florida Intestate Estates

Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse.

Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is:

(1)  If there is no surviving descendants of the decedent, the entire intestate estate.

(2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.

(3)  If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

After October 1, 2011, if a married person dies without a Will and is survived by a spouse and children, all of whom are also the children of the surviving spouse, then the surviving spouse will receive 100% of the deceased spouse’s probate estate. This is a fairly significant change to Florida Statute §732.102 (2). The reasoning behind the change appears to be that a married couple with children born of their marriage would most likely want their spouse, who is also the mother or father of their children, to inherit 100% of their estate. However, this may not always be the case, especially where one spouse comes from a wealthy family who prefers that their wealth be passed along through their family blood lines.  If all the money goes to the surviving spouse and he or she gets remarried then perhaps none of the family money is passed down through the blood line.  If it is important to avoid this conclusion, then estate planning should be done to ensure proper disposition of the estate.

This new law is in line with the Florida legislature’s history of implementing increased protection for surviving spouse’s in the State of Florida (e.g., elective share, homestead protection, exempt property, family allowance, and pretermitted spouse statutes).

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