Cape Coral Surviving Spouse's Rights Lawyer

Surviving spouses have extraordinary rights under Florida law

EXEMPT PROPERTY: Surviving spouses are entitled to claim what the law describes as "Exempt Property". The Exempt Property consists of:

1. Household furniture, furnishings, and appliances in the decedent's usual place of abode up to a net value of $20,000.00, and

2.Two motor vehicles owned by the decedent and regularly used by the decedent or members of the decedent's family.

If there is no surviving spouse the children of the decedent have the right to claim the exempt property.

FAMILY ALLOWANCE: the Family Allowance is available to the surviving spouse and children supported by the decedent to provide for living expenses. The maximum available is $18,000.00.

HOMESTEAD: The surviving spouse receives a life estate in the homestead the decedent owned at his or her death. At the surviving spouse's death the property goes to the children of the decedent. This arrangement ties the surviving spouse to the homestead for her life, a situation which may not be desired. An alternative is the surviving spouse's right to Elect to Take a One-half Interest as tenant in common. The other one-half interest goes to the children of the decedent. This allows the surviving spouse to force a sale of the property and receive one-half of the sale proceeds.

CREDITORS: Exempt Property, Family Allowance and Homestead Rights are available absolutely free from the claims of any creditors of the deceased spouse, unless the debt owed is secured by a lien against the specific property.

SHARE OF THE INTESTATE ESTATE: If the deceased spouse left no will or trust, meaning that they died "intestate", the surviving spouse receives the estate. If there are children of the deceased spouse the share the estate with the surviving spouse.

PRETERMITTED SPOUSE: If a person marries after making a will and dies leaving a surviving spouse the surviving spouse receives the same share of the intestate estate noted above.

ELECTIVE SHARE: If the deceased spouse leaves a will or trust which leaves less than their entire estate to their surviving spouse the surviving spouse has options to consider. The Elective Share is the safety net for surviving spouses. Florida law allows a surviving spouse to choose to take thirty percent of what is known as the "augmented estate". The "estate" of a decedent includes all the property in their name alone at their death subject to probate proceedings, or held in their trust. The "augmented estate" includes those assets plus many assets passing outside probate such as joint accounts, pay on death accounts, annuities, insurance, outright gifts, and other assets. This law protects a surviving spouse from a spouse who gives their property away to others before death.

NOTICE IS REQUIRED: To receive any one of these benefits the surviving spouse must they file a notice that they intend to take the benefit. The election must be made within strict time frames as provided in the law. Each is different. A lawyer's advice is vital when considering these options.

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