For young married couples building their first estate plan, one of the most reassuring features of Florida law is how strongly it protects a surviving spouse. You cannot accidentally, or even intentionally, disinherit your husband or wife in Florida. Understanding these built-in protections helps first-time planners design a plan that works with the law rather than against it.
The Florida Elective Share
Florida’s elective share, found in Statute 732.2065, guarantees a surviving spouse the right to claim thirty percent of the deceased spouse’s elective estate, regardless of what the will says. The elective estate is broader than just probate assets. It includes many non-probate items such as certain trust property, accounts with beneficiary designations, and other assets, which prevents one spouse from quietly shifting everything away from the other. A surviving spouse must affirmatively elect to take this share within deadlines set by law, so timing matters.
Why This Matters for Young Couples
Most young couples want their spouse to be protected, so the elective share rarely feels like a constraint. But it becomes very important in blended families, second marriages, or when one spouse brings significant separate assets into the marriage. If your plan tries to leave most of your estate to children from a prior relationship, the elective share can override those wishes. Knowing this up front lets you plan honestly and avoid surprises.
Homestead Protections for a Surviving Spouse
Florida’s homestead rules give a surviving spouse strong rights in the family home. If you are survived by a spouse and have a minor child, you generally cannot leave the homestead to anyone else. When a spouse inherits homestead while there are descendants, the law gives the surviving spouse a choice between a life estate in the home or a one-half interest as a tenant in common with the descendants. These protections exist specifically to keep a surviving family housed.
Family and Exempt Property Allowances
Florida also provides a family allowance to support a surviving spouse and minor children during the probate process, plus exempt property rights covering certain household furnishings and vehicles up to statutory limits. These ensure a young family is not left without resources while an estate is being settled.
Planning With These Rights, Not Against Them
The smartest plans treat these protections as a foundation. A well-drafted will and trust can provide for a spouse generously while still caring for children, using tools like marital trusts. For couples with prior marriages, a prenuptial or postnuptial agreement can waive certain spousal rights, but only if done properly under Florida law.
This page is general information, not legal advice. Elective share calculations and homestead rules are complex and deadline-driven. Please consult a licensed Florida attorney about your specific situation.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles Medicaid asset protection trusts.