Marriage and Probate in the State of Florida


Marriage is a beautiful time for anyone’s life. The union of two people prepared to stay together for the rest of their lives not only is personally fulfilling, but it also comes with several protections under the law all the way from creditor protections to tax benefits. But did you know that marriage comes with powerful protections when it comes to estate planning and probate in the State of Florida? Probate, the process by which a deceased person’s assets are legally transferred to their rightful heirs, comes with its own special rules when it concerns a surviving spouse and his or her rights concerning a spouse’s estate. This article will explore some of the laws concerning the probate of someone’s estate  who died with a surviving spouse.

Marriage and Probate in the State of Florida

Homestead Devise

As we stated before, marriage comes with a ton of benefits under Florida law. One of those benefits comes in the form of restrictions on how homestead property, your primary residence, can or cannot be left to someone in your Last Will and Testament. The State of Florida takes strong care to ensure that homestead property is preserved for the family, where it can. For instance, under Section 732.4015, Florida Statutes, it is prohibited to transfer homestead property via your will if you are survived by a spouse or a minor child. In light of this statute, if someone died with a surviving spouse and left behind a Last Will and Testament indicating a wish that the homestead property be transferred to his or her best friend at death – such a transfer would not be allowed. Please note that this statute also means that someone is free to leave their homestead property to whomever they please if they are not survived by a spouse or minor child. Therefore, if you are not sure if your loved one has properly indicated in his or her Last Will and Testament to whom their homestead property will transfer upon their death, it would be a good idea to meet with a qualified probate attorney to help analyze all of the facts on your behalf.  

Tenancy by the Entireties

Under the law, there are different ways that people may jointly own property together. In the State of Florida, where a married couple has acquired title to a piece of property at the same time and have equal shares of that piece of property, that married couple will likely qualify to own the property as tenants by the entireties. Owning property as tenants by the entireties comes with great benefits ranging from creditor protection benefits along with an added estate planning benefit because owning property by the entireties means that there is what is called a “right of survivorship”. For instance, suppose a married couple owned a piece of property by the entireties and one of the spouses passes away. By operation of law, the surviving spouse will own the deceased spouse’s share of the property. Such a technique allows the property to pass to the surviving spouse without the need to incur the costs and time associated with a probate administration. If you are interested in ensuring that you own your property by the entireties with your spouse, be sure to consult with your estate planning attorney to ensure this is done properly.

Elective Share

Florida law recognizes that some marriages may be strained or that there may be instances where a spouse would wish to completely disinherit his or her spouse without actually going through with a divorce. Florida law prohibits someone from completely disinheriting his or her spouse, without the disinherited spouse’s approval. Under Sections 732.201 and 732.2065, Florida Statutes, a surviving spouse has the right to claim 30% of a share of the deceased spouse’s estate. Please note, however, that such a right to an elective share can be waived in a document, for instance, such as a prenuptial agreement. If you have concerns about being disinherited by a spouse, it will benefit you to have a conversation with an estate planning and probate attorney to best advise you on your rights.


Divorce has a strong effect on an estate plan in Florida. Under Section 732.507(2), a provision of a Last Will and Testament affecting a spouse will become void upon divorce. Therefore, suppose a man named Paul names his husband, Carl, as the sole beneficiary of a valid Last Will and Testament. Upon divorce and Paul’s subsequent death, the surviving ex-husband, Carl, will no longer qualify as a beneficiary under Paul’s Last Will and Testament. In fact, in these instances, a probate court would treat the passage of Paul’s assets as though they should pass if Carl has died before Paul. Essentially, divorce generally has the effect of not allowing an ex-spouse to inherit from his or her ex. However, it is always strongly recommended that you update your estate plan after big life events such as a divorce. So, if you have gone through a divorce, it would be a good idea to meet with your estate planning attorney to ensure your assets pass to whomever you wish upon your death.

Intestate Succession

It is important to note what would happen if your spouse were to pass away without having an estate plan in place. In Florida, when someone passes away without a Last Will and Testament in place, his or her estate is said to be intestate. When an estate is intestate, the assets of the estate will pass in accordance with Florida law. Generally speaking, a surviving spouse has the right to inherit the entirety of his or her spouse’s estate. However, things are different in the instance of a blended family. Take, for instance, a husband and wife who each have children from previous relationships. Suppose the husband in this hypothetical situation passes away before his wife without a valid Last Will and Testament in place. In these instances, under Section 732.102, Florida Statutes, the surviving wife would be entitled to half of the deceased husband’s estate, the remaining to pass to the husband’s children. There are even more concerns with such requirements under Florida law and if you are concerned about how your property will pass, especially in a blended family, it would be a great benefit to speak with an estate planning attorney.


 If you and your spouse have a clear picture of how you wish your assets to pass upon your death, it is important that you both contact a qualified estate planning attorney to ensure that your estate plan complies with the requirements under Florida law. Also, it is just as important if you are a surviving spouse curious about what your rights are to your spouse’s estate to meet with a skilled probate attorney to explain what your rights are. If you have any questions or need assistance setting up your estate plan or handling your loved one’s probate, we encourage you to give Stivers Law a call at 305-456-3255.

Author Bio

Justin Stivers is the founder and managing attorney of Stivers Law, an estate planning firm specializing in wills, probate, trust administration, and financial risk management services. Justin’s approach goes beyond just creating legal documents. From aligning investments with estate plans to ensuring comprehensive insurance coverage, he safeguards a client’s legacy from unforeseen circumstances. His commitment extends beyond individual transactions, fostering lifelong partnerships to provide ongoing support and guidance.

With an impressive track record, Justin is licensed by the Florida and the Tennessee State Bars. His professional portfolio boasts Series 65 registration as a Registered Investment Advisor, the Wealth Management Specialist™ designation, and a 2-15 License for Health, Life, and Annuities. His dedication to excellence has earned him positions like Board Member of the Estate Planning Council of Greater Miami, Business Eagle Member of the Florida Justice Association, and active membership in esteemed organizations like the American Academy of Estate Planning Attorneys.

LinkedIn | State Bar Association | Avvo | Google