In Florida probate, a surviving spouse must act quickly because several of the most valuable rights a spouse holds are not automatic. The elective share, the spousal homestead election, the family allowance, and exempt property all must be claimed affirmatively, and most carry hard deadlines measured from the date of death or the date of service of the notice of administration. Miss the window and the right is generally gone for good, no matter how unfair the will turns out to be.
That last sentence is the whole reason this article exists. Florida treats a surviving spouse generously on paper, but it puts the burden of asserting those protections squarely on the spouse. For families on Long Island who own a Florida condo, a Naples winter home, or who relocated a parent to Florida late in life, the rules are unfamiliar and the clock is unforgiving. Below is a practical map of when a surviving spouse must act, and what is actually at stake.
The core principle: Florida spousal rights are claimed, not granted
Unlike intestate inheritance, which a court applies automatically, the headline protections for a Florida widow or widower require a filing. A spouse who simply waits to “see what the estate distributes” is the spouse most likely to lose money. The personal representative is not obligated to remind you, and in a contested estate, the personal representative may be the very person whose share shrinks if you assert your rights.
The four time-sensitive rights every surviving spouse should evaluate immediately are the elective share, the homestead election (life estate versus a one-half tenancy in common), exempt property, and the family allowance. Each lives in a different part of the Florida Probate Code and each runs on its own calendar.
The elective share: 30% of the elective estate
The elective share is Florida’s answer to disinheritance. Under Florida Statutes §732.201 and following, a surviving spouse may elect to take 30% of the “elective estate” instead of whatever the will leaves them, or instead of nothing if the will leaves them out entirely. This is the protection that stops a spouse from being written out in favor of children from a prior marriage, a new partner, or a charity.
Two things make the elective share powerful and dangerous in equal measure. First, the elective estate is much broader than the probate estate. It reaches assets that never pass through probate at all.
- Property in the decedent’s revocable living trust
- Pay-on-death and transfer-on-death accounts
- Joint accounts and jointly titled property attributable to the decedent
- The net cash surrender value of life insurance on the decedent’s life
- Certain retirement and pension benefits
- Property transferred within one year of death without adequate consideration
Second, the deadline is strict. Under §732.2135, the election must be filed within the earlier of six months after service of the notice of administration on the spouse, or two years after the date of death. The court can extend the time for good cause if a request is made before the period runs, but you cannot count on that mercy. The practical rule is simple: calendar the date the notice of administration is served and treat six months as a wall, not a suggestion.
One more nuance that trips up beneficiaries: the elective share can be satisfied from various sources, and there is an order of contribution that can pull from trust assets and non-probate transfers. So even a beneficiary who expected a clean distribution from a trust may see that distribution reduced to fund a valid elective share. If you are a beneficiary waiting on a Florida distribution and a surviving spouse is in the picture, the elective share is the single most common reason your check is delayed.
Should a spouse even take the elective share?
Not always. If the will or trust already leaves the spouse more than 30% of the elective estate, electing would reduce what they receive. The elective share is a floor, not a bonus. The analysis requires actually valuing the elective estate, which is exactly why the six-month window is so tight, there is real work to do before the deadline.
Homestead: the most misunderstood spousal right in Florida
Florida’s homestead protections are constitutional, not merely statutory, and they override most provisions of a will. If a decedent was survived by a spouse and tried to leave the homestead to anyone other than that spouse, the devise is generally invalid. What the spouse receives instead depends on an election.
Under §732.401, when there are also descendants, the surviving spouse takes a life estate in the homestead by default, with the remainder to the descendants. But the spouse may instead elect to take an undivided one-half interest as a tenant in common, with the other half going to the descendants. This election matters enormously: a life estate keeps the spouse in the home for life but burdens them with taxes, insurance, and upkeep, while a one-half ownership stake gives a sellable, transferable asset.
The deadline is short. The homestead election must be made within six months after the decedent’s death and filed in the probate proceeding. There is no two-year backstop here. For a grieving spouse, six months from death is brutally fast, which is why this decision should be on the table at the very first meeting with counsel.
Exempt property and the family allowance
Two smaller but immediate protections round out the spouse’s toolkit, and both can put assets in a spouse’s hands long before the estate closes.
Exempt property under §732.402 includes household furniture and appliances up to a statutory value, two motor vehicles used by the decedent or immediate family, certain qualified tuition program funds, and statutory death benefits for teachers and school administrators. These items pass to the spouse free of most creditor claims. The catch: the petition to determine exempt property must be filed within the later of four months after service of the notice of administration or 40 days after termination of any will contest proceeding. Wait too long and the items fold back into the general estate.
The family allowance under §732.403 provides up to $18,000 for the maintenance of the surviving spouse and lineal dependents during administration. It can be paid in a lump sum or in installments and is in addition to, not instead of, other benefits. For a spouse facing mortgage and living costs while the estate is tied up, this is often the first money available.
A practical timeline for the surviving spouse
Here is how the deadlines stack up in roughly the order a spouse encounters them. Treat the date of death and the date the notice of administration is served as your two anchor points.
- Immediately: Secure the homestead, locate the will and trust, and identify non-probate assets (trust, POD/TOD accounts, life insurance). These drive the elective-estate math.
- Within 6 months of death: Decide and file the homestead election (life estate versus one-half tenancy in common).
- Within 4 months of notice of administration: File for exempt property; consider the family allowance, which can be requested early.
- Within the earlier of 6 months of notice or 2 years of death: File the elective-share election under §732.2135.
Because these clocks run in parallel and from different start dates, a spouse who only watches one of them can easily blow another. This is the heart of why Florida probate punishes the passive spouse.
Where this intersects with a New York estate
Many Long Island families are surprised that a Florida home or account is governed by Florida law even when the decedent’s primary estate is administered in New York. If a parent or spouse died domiciled in Florida, or owned Florida real property, ancillary or primary probate in Florida applies these spousal rules regardless of where the family lives. New York’s right of election under is a separate creature, with its own one-third floor and its own deadline, and it does not substitute for the Florida elective share. A surviving spouse with assets in both states may have to act in both.
When a will or trust is being challenged, the deadlines above interact with litigation timelines, and the contribution rules can pit beneficiaries against the surviving spouse. If you anticipate a fight over the validity of the instrument or the spouse’s claims, experienced counsel in can coordinate the New York and Florida pieces so a deadline in one state does not get lost while you focus on the other. For the Florida-side filings specifically, work with attorneys who handle Florida probate day to day.
What beneficiaries awaiting distribution should know
If you are a child or other beneficiary waiting on your share, the surviving spouse’s rights are usually the gating item. An estate generally cannot make final distributions until the elective share, homestead, exempt property, and allowance are resolved, because each can change who gets what. The most common cause of a stalled Florida distribution is not laziness by the personal representative, it is an open or anticipated spousal election. Understanding that timeline helps you set realistic expectations and spot when a personal representative is genuinely delayed versus simply waiting out a statutory window.
For families weighing whether the spouse’s planning documents were properly drafted in the first place, our overview of wills and estate documents and our guide to the Florida probate process explain how these protections are built in, or accidentally left out, during planning.
The bottom line
A surviving spouse in Florida holds real power, but only if they use it on schedule. The elective share, the homestead election, exempt property, and the family allowance are claims, not gifts, and they expire. The safest move after a death is to get the documents and asset list in front of a probate attorney within the first weeks, build the deadline calendar early, and decide each election deliberately rather than by default. If you are a spouse, a beneficiary, or both, speak with an attorney before any of these windows close.
Frequently Asked Questions
How long does a surviving spouse have to claim the elective share in Florida?
Under Florida Statutes §732.2135, the elective share must be filed within the earlier of six months after service of the notice of administration on the spouse, or two years after the date of death. A court may extend the time for good cause only if the request is made before the period expires, so the practical rule is to treat the six-month mark as a firm deadline.
What is the Florida spousal elective share worth?
The elective share is 30% of the decedent’s ‘elective estate,’ which is broader than the probate estate. It includes revocable trust assets, pay-on-death and transfer-on-death accounts, the decedent’s share of joint property, the net cash surrender value of life insurance, certain retirement benefits, and some transfers made within a year of death.
Can a surviving spouse keep the Florida homestead if the will leaves it to someone else?
Generally yes. Florida’s constitutional homestead protection usually invalidates a devise of the homestead to anyone other than the surviving spouse when there is a spouse. Under §732.401, the spouse takes a life estate by default, but may elect within six months of death to take an undivided one-half interest as a tenant in common instead.
What is the Florida family allowance and how much is it?
Under §732.403, the family allowance provides up to $18,000 for the support of the surviving spouse and lineal dependents during estate administration. It can be paid as a lump sum or in installments and is in addition to other spousal benefits, making it one of the first sources of money available before the estate closes.
Why is my Florida inheritance delayed when there is a surviving spouse?
Final distributions usually cannot occur until the surviving spouse’s rights are resolved, because the elective share, homestead election, exempt property, and family allowance can each change who receives what. An open or anticipated spousal election is the most common reason a Florida estate distribution is held up, even when the personal representative is acting properly.
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