The laws for distribution of assets after death through probate apply only to assets in the decedent's name alone. Property and accounts in the name of both husband and wife automatically remain the sole property of the surviving spouse. Accounts in joint names of a spouse and non-spouse which specify "with right of survivorship" pass to the survivor. Assets which designate a beneficiary upon death of the owner, go to the designated beneficiary.
To determine how assets held in the decedent's name only will be distributed after death, we first answer these questions:
- Who is a surviving spouse? A surviving spouse is a person who was legally married to a person now deceased. This is true even if the spouses were living apart or had filed for divorce, so long as no final order dissolving the marriage had been entered.
- Did the surviving spouse sign a pre-nuptial or post-nuptial agreement with the
decedent? If yes, the terms of that agreement, if valid, would control.
- Did the decedent execute a valid will? If so, the terms of the will should be compared to be sure certain laws are met. If they are, the will shall control. These requirements will be discussed later.
- Was the decedent survived by a child or children? Did the decedent have any deceased child who left surviving children?
- If the primary residence of the deceased is homestead, the residence is governed by different rules.
In a probate estate where there is no Last Will and Testament and there is no surviving descendant of the decedent, the surviving spouse receives the entire intestate estate.
If the decedent was survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse gets the entire intestate estate.
But if the decedent has one or more surviving descendants who are not the descendants of the surviving spouse, then the surviving spouse receives half of the intestate estate and the surviving descendants receive half.
Or if the decedent has one or more surviving descendants who are all descendants of the surviving spouse, but the surviving spouse has a descendant from a different relationship, the surviving spouse receives one-half.
Other Benefits a Surviving Spouse May Claim in
Addition to the Intestate Inheritance or the Will:
As a surviving spouse, you may also claim the benefits outlined below, in addition to your share of the intestate estate or the terms of the will. Even if you will receive all of the estate, you may wish to claim them if the estate has large creditors claims.
The first is a family allowance for support not to exceed $18,000.00.
The next is exempt property. Exempt property includes:
- Household furniture, furnishings, and appliances in the decedent's usual home up to a net value of $20,000.00.
- Two motor vehicles (each weighing no more than 15,000 pounds) which are titled in the decedent's name and regularly used by the decedent or household members.
- All qualified tuition programs per Section 529 of the IRS Code.
- Benefits paid per 112.1915 (paid on account of death of teacher as a result of an intentional unlawful act under specific circumstances)
Exempt property does not include clothing, jewelry, lawn mowers, tools and fixtures in the home. Property devised in the will to any beneficiary, shall not be included in exempt property.
To claim exempt property, a petition must be filed in court within a certain time limit.
Special rules apply to the decedent's primary residence in Florida. If it is established as the decedent's homestead in court, the surviving spouse receives a life estate in the homestead and the remainder interest goes to the decedent's children. Or if the decedent had no surviving descendants, the spouse receives the residence.
The surviving spouse may instead elect to take a one-half interest in the homestead. The election must be made within 6 months after the decedent's date of death.
In some cases, the decedent's probate estate may be small although the assets held that are not subject to probate are much larger. This applies whether the estate is passing by intestate laws or under a will. In those situations, the surviving spouse may wish to claim an "elective share". The elective share would entitle the surviving spouse to 30% of assets outside of probate as specified by the statute. If you think this applies to your situation, consult your attorney promptly. The calculation of exempt property is complex. There is a deadline on when the election for exempt property may be filed.
When the decedent left a Last Will and Testament which was signed prior to the marriage or prior to the birth of a child, the surviving spouse, or after-born child, may petition for a share as a pretermitted heir. Unless the will makes a provision for the spouse or discloses an intention not to provide for the spouse, the spouse will receive the same share as if there had been no will. Similar provisions apply for a decedent's child born or adopted after the will was signed.
If you have questions regarding these issues, we will be happy to assist you. Contact your Miami probate attorney today for more information.