A surviving spouse usually receives property in three ways: assets that pass outside probate (joint accounts, property held as tenants by the entireties, accounts and policies naming the spouse); what the will gives, or, without a will, an intestate share that is often everything; and statutory protections that apply even if the will says otherwise.
Those protections include homestead rights (§ 732.401, § 732.4015), exempt property such as household furniture up to $20,000 and two vehicles (§ 732.402), a family allowance of up to $18,000 during administration (§ 732.403), and the right to elect an elective share of 30 percent of the elective estate (§ 732.2065).
Without a will
The spouse receives the entire probate estate if the decedent left no descendants, or if all the decedent’s descendants are also the spouse’s and the spouse has no other descendants. Otherwise the spouse receives one-half and the decedent’s descendants share the other half (§ 732.102). See what happens without a will.
With a will
A will can leave the spouse more or less than the intestate share, but it cannot take away:
- Homestead protection. If the owner is survived by a spouse or minor child, the homestead cannot be left to anyone else, except that it may be left to the spouse when there is no minor child (Art. X, § 4, Fla. Const.; § 732.4015). If the will tries, the spouse receives a life estate (with the remainder to the descendants), or may elect within six months after the death to take a one-half interest as a tenant in common instead (§ 732.401).
- Exempt property and the family allowance, which come before other beneficiaries (§ 732.402, § 732.403).
- The elective share, explained below.
A spouse the decedent married after signing the will, who is not provided for in it, may be entitled to an intestate share as a “pretermitted spouse,” unless a prenuptial or postnuptial agreement provided for or waived it, or the will shows an intention not to provide for the spouse (§ 732.301).
The elective share
A surviving spouse of a Florida domiciliary may elect to take 30 percent of the elective estate instead of relying on the will (§ 732.201, § 732.2065). The elective estate is broader than the probate estate: it includes the protected homestead, payable-on-death, transfer-on-death, and joint accounts, revocable trust assets, and other property (§ 732.2035). The elective share is in addition to homestead, exempt property, and the family allowance (§ 732.2105). The election must be filed by the earlier of six months after the spouse is served with the notice of administration or two years after the death (§ 732.2135).
Assets that pass directly to the spouse
- Bank accounts in both names are presumed to pass to the survivor, and an account in the names of a husband and wife is treated as held by the entireties unless stated otherwise in writing (§ 655.79).
- Real estate held as tenants by the entireties passes to the survivor.
- Life insurance, retirement accounts, and POD or TOD accounts naming the spouse pass under the designation.
What changes the answer
- A prenuptial or postnuptial agreement: spousal rights can be waived in a written agreement signed before two witnesses, with fair disclosure if signed after marriage (§ 732.702)
- Children from another relationship
- A divorce before death, which generally voids will provisions and many beneficiary designations for the former spouse (§ 732.507, § 732.703)
- How the home and accounts are titled
An example
A wife dies with a will leaving everything to her children from a prior marriage, survived by her husband of eight years and no minor children. The couple’s joint checking account and the life insurance naming the husband pass to him directly. Because she was survived by her husband, her homestead could be left only to him, so the will’s gift of the house to her children fails. He receives a life estate in the house with the remainder to her children, or may elect within six months to take a one-half interest instead. He may also elect a 30 percent elective share within the statutory deadline, and claim exempt property and the family allowance.
Common misunderstandings
- “The spouse automatically gets everything.” Not when there are children outside the marriage, or a will says otherwise.
- “The will left me nothing, so I get nothing.” Statutory rights may still apply.
- “I have plenty of time to decide.” The homestead election (six months after death) and the elective share deadline are strict.
What to gather
- The will, any trust, and any prenuptial or postnuptial agreement
- Deeds for the home and other real estate, showing how title is held
- Account statements and beneficiary designations
- The date you were served with the notice of administration, if any
Next step
Calendar the six-month homestead election date and the elective-share deadline right away, then review how each asset is titled with counsel before making any election.
Related guidance
- What happens without a will?
- What is exempt property?
- Florida homestead after death
- Florida homestead trust planning
Sources: Art. X, § 4, Fla. Const.; Florida Statutes § 655.79, § 732.102, § 732.201, § 732.2035, § 732.2065, § 732.2105, § 732.2135, § 732.301, § 732.401, § 732.4015, § 732.402, § 732.403, § 732.507, § 732.702, and § 732.703 (2026). Checked on October 23, 2026.