Author: Matthew Shapiro

The third spousal right for discussion is “elective share.”  Absent a valid waiver of spousal rights, the elective share serves as a floor for inheritance. It presents a surviving husband or wife with the opportunity to make sure they receive at least thirty percent of the deceased spouse’s “augmented estate” or “elective estate.”  A keen reader may notice the absence of the phrase “probate estate.”  This is because the elective share applies to more than just assets that pass-through probate and which are controlled by a Last Will and Testament.  The augmented estate includes a large swath of assets, including property held in a revocable trust, jointly held property, property with a right of survivorship, and certain property transferred prior to death. 

The second of several rights enjoyed by a surviving spouse (absent a proper, formal waiver) is that of “family allowance.”  Family allowance is the concept that the surviving spouse and certain “lineal heirs” of the decedent the are entitled to money during probate administration.  The policy behind family allowance is to private ongoing financial support, for those who need it, while a decedent’s assets are tied up in probate. 

Clients and their children are often shocked to learn that a surviving spouse has certain minimum rights to the deceased spouse’s property under Florida law.  These rights exist by virtue of marriage and can only be waived in a very particular manner.  They include the right to inheritance as a “pretermitted spouse, family allowance, elective share, homestead, and preference in appointment as personal representative.  For part one of this multi-part blog, I will address the concept of a pretermitted spouse and family allowance.