Beneficiaries awaiting distribution often discover that the will alone does not tell the whole story. In Florida, two powerful rules, homestead protection and the spousal elective share, can override what a will says and reshape who receives what. Understanding them early prevents painful surprises at distribution time.
Florida Homestead Protection
Florida’s homestead is unusual. The state constitution protects a decedent’s primary residence from most creditors and restricts how it can be devised. If the decedent was survived by a spouse or minor child, the homestead generally cannot be left to anyone else outright, and it passes outside the probate estate. For beneficiaries, this means the family home is often not part of the assets a personal representative distributes, and a beneficiary expecting the house may instead find it protected for a surviving spouse.
How Homestead Passes
When there is a surviving spouse and descendants, Florida law gives the spouse a choice between a life estate in the homestead with a remainder to the descendants, or an undivided one-half interest as a tenant in common with the descendants. That election directly affects what children or other descendants ultimately receive. Because homestead determinations can be contested, beneficiaries should confirm the home’s status rather than assume it follows the will.
The Spousal Elective Share
A surviving spouse cannot be disinherited in Florida. Under Section 732.2065, the spouse may elect to take thirty percent of the elective estate, even if the will leaves them less or nothing. The elective estate is broad, reaching beyond the probate estate to include certain assets such as revocable trust property, jointly held accounts, and other transfers. For other beneficiaries, an elective share election can significantly reduce the pool available for distribution.
Why This Matters While You Wait
If you are a beneficiary other than the spouse, an elective share claim or a homestead determination can delay distribution and shrink your share. If you are the surviving spouse, these rules may entitle you to far more than the will provides. Either way, the time to understand your position is before the personal representative proposes a final distribution, not after.
Deadlines Matter
The elective share is not automatic. The surviving spouse must file an election within strict statutory time limits, generally the earlier of six months after service of the notice of administration or two years after the decedent’s death. Miss the deadline and the right can be lost. Beneficiaries on both sides of this issue need to track these dates closely.
Consult a Florida Attorney
Homestead and elective share calculations are among the most technical areas of Florida probate, and this page is general information rather than legal advice. Before making or responding to a claim, consult a licensed Florida attorney who can apply these rules to the specific assets in your estate.
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