Rights of the Surviving Spouse

Prepared and Presented by:

Adrian P. Thomas, LL.M., J.D.
Adrian Philip Thomas, P.A.
SunTrust Center

515 East Las Olas Boulevard, Suite 1050
Fort Lauderdale , FL 33301
954/ 764-7273
www.florida-probate-lawyer.com



Survey of Florida Law regarding the Rights of a Surviving Spouse

  1. The Law of Intestacy
    1. Marriage Requirements. If no marriage license, marriage can be proved under Fla.Stat. §741.10 with an affidavit of two witnesses to marriage ceremony. For common law marriages entered into in Florida prior to 1968, marriage is proved by following the elements of proof set forth in Van Derven v. Van Derven, 105 So.2d 805 (Fla. 3d DCA 1958). Common law marriages entered into, and valid, in another state, are recognized under Florida law.
    2. No Surviving Lineal descendents. Under the Florida Probate Code, Fla.Stat. § 732.102(1), if the decedent is not survived by lineal descendants, the entire estate passes by the laws of intestacy to the surviving spouse.
    3. If Lineal Descendants. If there are lineal descendants of the decedent, all of whom are also descendants of the surviving spouse, the Florida Probate Code, Fla. Stat. §732.102(2), provides for the surviving spouse to take the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Under these circumstances, use Florida Bar Probate Form No. P-4.0120. If there are lineal descendants, some who are not descendents of the surviving spouse, the surviving spouse takes one-half of the intestate estate and the lineal descendents take one-half per stirpes.
      1. How is $60,000 portion satisfied? Property used to satisfy the requirements is valued at the fair market value on the date of distribution.
      2. What if there is a divorce? No surviving spouse rights; however, a legal separation, regardless of duration, does not sever the marriage for purposes of application of the laws of intestacy.
      3. What if the spouse is an alien? If the surviving spouse is an unnaturalized citizen of another country, Fla.Stat. § 732.1101 permits aliens to take both real and personal property by will or inheritance. There is an exception, however, for distributions to Cuban nationals or residents of Cuba. According to the Florida Attorney General ruling 84-2, the Federal Cuban Assets Control Regulations preclude distributions from a state to a Cuban, and instead, the assets must be deposited in a “blocked account” pursuant to 31 C.F.R. § 515.319.
  2. Statutory Shares and Elections Against A Will
    1. Right to an Elective Share. The Probate Code, Fla.Stat. § 732.2065, provides that the surviving spouse has the right to an elective share of the estate of the decedent. The elective share is 30% of the “elective estate.”
      1. Fla.Stat. §732.2035 provides that the following sum of the values of the following property is included in the elective estate:
        1. The decedent’s probate estate;
        2. The decedent’s ownership interest in accounts or securities registered in “payable on death,” “transfer on death,” “in trust for,” or “co-ownership with right of survivorship” form (“decedent’s ownership interest” means one-half of the value of any accounts or securities held in tenancy by the entirety, and in all other cases, the portion of the accounts or securities that the decedent could withdraw or use without a duty to account to some other person);
        3. The decedent’s fractional interest in property held in joint tenancy with right of survivorship or in tenancy by the entirety;
        4. Revocable trusts;
        5. Irrevocable transfers by the decedent to the extent that, at the time of his death, he retained the right to the income or principal of the property or the principal of the property could be distributed or appointed to him or for his benefit, e.g. a discretionary trust (with certain exceptions);
        6. The net cash surrender value of the decedent’s life insurance policies;
        7. The value of any death benefits pursuant to a pension, retirement, or deferred compensation plan;
        8. Property transferred during the one-year period preceding the decedent’s death (with certain exceptions); and
        9. Property transferred in satisfaction of the elective share.
      2. The following property does not enter into the elective estate:
        1. Transfers of property to the extent of the decedent received adequate consideration;
        2. Any transfer by the decedent made with the written consent of his spouse;
        3. Proceeds of the decedent’s life insurance policy in excess of the net cash surrender value;
        4. The decedent’s life insurance policy maintained pursuant to a court order;
        5. The decedent’s one-half of community property;
        6. Property held in a qualifying special needs trust on the date of the decedent’s death;
        7. Irrevocable transfers made before October 1, 1999, or before the decedent’s marriage to the surviving spouse;
        8. Property included in the decedent’s gross estate for federal estate tax purposes solely because the decedent possessed a general power of appointment; and
        9. The decedent’s protected homestead, whether held by the decedent or by a trust at the decedent’s death.
    2. Liability of beneficiaries for satisfaction of the elective share. The Probate Code, Fla.Stat. §732.2075, provides that trust and probate estate beneficiaries who receive a distribution of principal after the decedent’s death are liable in an amount equal to the value of the principal distributed to them multiplied by the contribution percentage of the distributing trust or estate. In order to satisfy the elective share balance, liability for contribution is equitably apportioned among the recipients of the remaining elective estate in the a statutorily determined list of priority: (1) Recipients of property in the decedent’s probate estate or trust; (2) Recipients of accounts or securities registered in “payable on death,” “transfer on death,” “in trust for,” or “co-ownership with right of survivorship” form; property held in joint tenancy by the entirety; the cash surrender value of the decedent’s life insurance policies; certain property transferred by the decedent and the value of any death benefits under a pension; retirement, or deferred compensation plan; and (3) Recipients of all other property interest included in the elective state, excluding those qualifying for a charitable deduction.
    3. Procedure. The Personal Representative will collect contribution from the recipients of the elective estate as provided in the order of contribution under Fla.Stat. §732.2145.
      1. Surviving Spouse can bring independent action and collect attorneys fees. There is no prohibition against a surviving spouse bringing an action to collect the elective share as provided in the order of contribution, under Fla.Stat. §732.2145, and if the surviving spouse prosecutes an action to collect the elective share to effectuate the order, the surviving spouse is entitled to costs and reasonable attorney’s fees.
      2. What is the effect of decedent’s inter vivos transfers? Case law holds that there is nothing prohibiting a spouse from making an actual and effective inter vivos conveyance with the intent to decrease or eliminate the other spouse’s elective share, so long as it is a bona fide transfer. Traub v. Zlatkiss, 559 So. 2d 443 (Fla. 5th DCA 1990). Other examples of assets that have been held not to be included in the elective share include assets of a revocable inter vivos trust; Friedberg v. Sunbank/Miami, 648 So. 2d 204 (Fla. 3d DCA 1995); savings accounts with right of survivorship; In re Estate of Solnick, 401 So. 2d 896 (Fla.4th DCA 1981); conveyance of property to third party with a life estate reservation; Kelly v. Hill, 481 So. 2d 1311 (Fla.2d DCA 1986). This is based on the recognized legal maxim that the right to devise property is a property right protected by the Florida Constitution. Shriners Hosps. For Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990). A sound argument can be made that the unfairness of the public policy implemented by this aspect of the law was addressed by the General Assembly when it codified section 732.2035 thereby expanding the types of property falling into the elective estate. Therefore, the holding of Traub v. Slatkiss has been called into doubt by the legislature and should not apply. See, Faile v. Fleming, 763 So. 2d 459, 25 Fla.L.Weekly D1446 (Fla. 4th DCA 2000).
  3. Surviving Spouse’s Homestead Rights
    1. Constitution. Article X, section 4 of the Florida Constitution defines certain property as “homestead,” thereby creating protection from creditors of the owners and placing restraints on the devise of homestead property away from, among others, a surviving spouse.
    2. Restraints. Under the Florida Probate Code, the homestead may not be devised if the decedent owner is survived by a spouse or minor child. Fla.Stat. §732.4015(1). However, the restraint only applies to solely-owned property. Real property owned by the decedent and surviving spouse as tenants by the entirety is not homestead property under Fla.Stat. §732.401(2). A devise includes a disposition by trust of that portion of the trust estate which, if titled in the name of the settlor of the trust, would be the settlor’s homestead. Fla.Stat. §732.4015. Further, the Probate Code, Fla.Stat. § 732.4015(1) restates the constitutional provision in that the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.
      1. What if the property is devised into a trust? Fla. Stat. §732.4015 was amended in 1992 to further restrict the devising of homestead property into a revocable trust:
        732.4015. Devise of homestead
        1. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.
        2. For the purposes of subsection (1), the term:
          1. “Owner” includes the grantor of a trust described in Florida Stat.. §733.707(3), that is evidenced by a written instrument in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.
          2. “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead. However, in In re Estate of Donovan, 550 So.2d 37 (Fla. 2d DCA 1989) the court held that the testator’s devise of his interest in homestead property to an inter vivos trust, with the wife serving as trustee and beneficiary, satisfied the requirements of Article X, section 4 of the Florida Constitution with respect to the devise of homestead interest, despite the provision in the trust that the settlor’s “just debts” would be satisfied prior to distribution of trust corpus to surviving spouse.
    3. Inheritance. The Probate Code provides that if the homestead property is not legally conveyed, then it passes as other intestate property. Thus, if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes. Fla. Stat. §732.401(1).
  4. Family Allowance And Other Spousal Rights
    1. $18,000, (maximum) payable in lump sum or in installments.
      1. DeSmidt v. DeSmidt , 563 So.2d 193 (Fla. 2d DCA 1990) holding that even wealthy surviving spouse can collect allowance, it is not necessary for surviving spouse to show need. Surviving spouse of decedent is entitled to reasonable allowance and money out of estate for spouse’s maintenance during administration, without being required to show necessity of support.
      2. However, Courts do have discretion, and may inquire into the reasonableness of the award. Florida Courts have held that a showing of reasonableness, through submission of affidavit or otherwise, is requisite for a court’s award of the requested allowance. See, Youngelson v. Youngelson, 114 So. 2d 642 (Fla. 1959); In re Estate of Gitlin, 31 Fla.Supp. 2d 99 (19th Cir. Ct. 1988).
    2. Not chargeable against the elective share. The Probate Code, Fla. Stat. §732.403 provides that the family allowance is in addition to exempt property and the homestead rights and is not included as part of the elective share or any portion or share passing to the surviving spouse through intestacy.
    3. Priority. The Probate Code § 733.707(1) provides that the family allowance is paid before any other debts of the decedent are paid. The Family Allowance is a class 5 priority for payment. Thus only funeral expenses, administration costs, debts and taxes with preference under federal law, and expenses of last illness (for last 60 days) take precedence.
    4. Attorneys Fees can be awarded in a proceeding for family allowance, especially if no good faith basis exists for any opposition to the award. See Bitterman v. Bitterman, 715 So.2d 356 (Fla.1998), where the Florida Supreme Court held that the inequitable conduct doctrine applied to conduct of personal representative of decedent’s estate, supporting an award of attorney fees to estate’s administrator ad litem and his attorneys; personal representative challenged surviving spouse’s petition for family allowances, her continued use of automobile titled in decedent’s name, her petition for homestead to obtain title to home in which she was living, and her retention of certain personal property, filed last minute objections, and challenged right of administrator ad litem to fees. See also, Hoyt v. Hoyt, 814 So.2d 1254 (Fla. 2d DCA 2002) holding that Widow’s attorney’s efforts in obtaining family allowance after personal representative failed to pay it benefited decedent’s estate, and thus widow was entitled to attorney fees expended in obtaining her family allowance under Fla.Stat. § 732.403.
    5. Exempt Property . In addition to homestead and family allowance, testate and intestate property, and the elective share, the surviving spouse of a decedent who was domiciled in Florida at the time of death is entitled to the items of tangible personal property.
      1. Household furniture and appliances up to $10,000.
      2. Personal automobiles held in the decedent’s name and regularly used by the decedent or members of the immediate family as personal automobiles. Trade or business automobiles are not included in the surviving spouse’s entitlement.
        1. Mobile homes and RV’s are not included. In re Estate of Corbin, 645 So.2d 39 (Fla. 1st DCA 1994).
      3. Prepaid College programs purchased pursuant to Fla. Stat. §240.551 and Florida College Savings agreements established and purchased pursuant to Fla. Stat. §240.553.
      4. Exclusion of exempt property. The Probate Code, Fla. Stat. §732.402(7), provides that exempt property is excluded from the value of the decedent’s estate before residuary, intestate, pretermitted, or elective shares are determined.
      5. Property that is specifically bequeathed by the decedent’s will is not subject to the exemptions of section 732.402.
  5. Community property
    1. The Florida Uniform Disposition of Community Property Rights at Death Act, codified at Fla.Stat. §§ 732.216 to 732.228, applies to the disposition of the following property acquired by a married person:
      1. Personal property, wherever located, which (i) was acquired as, or became and remained, community property under the laws of another jurisdiction; (ii) was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for community property; or (iii) is traceable to that community property; and;
      2. Real property, except that held as tenants by the entirety, that is located in Florida and that (i) was acquired with the rents, issues, or income of, or the
      3. proceeds from, or in exchange for property acquired as, or that became and remained, community property under the laws of another jurisdiction; or (ii) is traceable to that community property.
    2. Under the Act, on the death of a married person, one half of the property to which the Act applies is the property of the surviving spouse, and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of Florida. The decedent’s one half of the property is not in the elective estate.
    3. No Florida appellate opinions have addressed this Act since its effective date.
  6. Effect of Marital Agreements
    1. Waiver . The right of election, the right of the surviving spouse as an intestate successor or a pretermitted spouse, and the right to a homestead, exempt personal property, family allowance and preference in appointment as personal representative of an intestate estate can be waived, in whole or in part, by a written instrument signed by the waiving party in the presence of two subscribing witnesses. Fla. Stat. §732.702. See, Puma v. Aurin, No. 03-6590(62) (Fla. 17th Cir. Ct. May 21, 2005) relying on Jordan v. Fehr, 30 Fla. L. Weekly D950, (Fla. 1st DCA April 12, 2005).
      1. The witness requirement applies to waivers signed after January 1, 2002.
      2. “All Rights” language in a waiver and/or agreement is treated as a renunciation of all benefits that otherwise would pass to the waiving party by intestate succession, as a pretermitted spouse, elective share, homestead, exempt property, family allowance, and preference in appointment as personal representative of the intestate estate, or by a will executed before the property settlement.
      3. Prenuptial agreement. The Probate Code states the rule that there is no requirement for fair disclosure by each spouse to the other of his or her estate. Fla. Stat. §732.702(2); Estate of Roberts, 388 So. 2d 216 (Fla. 1980).
        1. What if the agreement is reached prior to marriage, but not reduced to writing and signed by the parties until after the marriage occurs?
          1. Trapani v. Gagliardi , 502 So. 2d 957 (Fla. 2d DCA 1987) Where the Court found that a written agreement executed after marriage, whereby husband and wife agreed that neither husband nor wife would have any right to estate of the other, was memorandum confirming prenuptial oral agreement, even though written agreement stated that wife could remain in husband’s residence for six months after his death and oral agreement contained no similar provision; therefore, no disclosure of assets was required at time of written agreement as prerequisite to agreement’s validity. Similarly, Flagship Bank of Miami v. King, 418 So. 2d 275 (Fla. 3d DCA 1982). The statute governing the validity of waiver of spousal rights is satisfied “[w]henever, as in this case, an agreement is actually reached– without disclosure–before the parties marry if it is reduced to writing at any stage, either before or after the marriage takes place.” [Emphasis added].
          2. Contrary position to Trapani and Flagship is that General Assembly uses the word “execute.” See language from In re Estate of Spangenberg, 561 So. 2d 315 (Fla. 2d DCA 1990): “The overall statutory provision is designed to require a written agreement. Attorneys, legislators, and laypersons “execute” written agreements. It is certainly unusual to select the word “execute” to describe an agreement which is merely oral. In normal usage, parties “reach” an oral agreement and subsequently “execute” a written agreement. I do not believe that the legislature wished to dispense with financial disclosure unless the parties actually executed the written agreement prior to the marriage. I can only conclude that the legislature selected the word “execute” in order to create certainty and to avoid those problems which oral agreements frequently create. The word “execute” effectively operates as a statute of frauds… [T]here is merit in a rule requiring a written agreement that is signed before marriage.
          3. Waton v. Waton , 887 So. 2d 419 (Fla. 4th DCA 2004) restates law of Del Vecchio v. Del Vecchio 143 So. 2d 17 (Fla. 1962) and Castro v. Castro , 508 So. 2d 330 (Fla. 1987) .
            1. Agreement makes unfair or unreasonable provision for that spouse, given the circumstances of the parties.
            2. If unreasonable, a rebuttable presumption arises conceding that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached.
            3. Presumption shifts burden to defending spouse, who may rebut these presumptions, by showing that there was (1) a full frank disclosure, or (2) a general and approximate knowledge of the character and extent of the marital property, as well as a general knowledge of the income of the parties.
        2. Policy considerations
          1. Postnuptial agreement. Each spouse must make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage.
          2. Personal Representative. The waiver of “all rights” in an agreement does not apply to a designation in a decedent’s will of the surviving spouse as executrix. A testatrix has the right to designate her personal representative and the choice must be recognized unless there exist some statutory disqualification.
          3. Consideration for the agreement is not required.
          4. Homestead waiver. When a decedent is not survived by minor children, and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property. City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991).
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