When a Surviving Spouse Must Act in Florida Probate: Deadlines, Elective Share, and Homestead Rights

In Florida probate, a surviving spouse must act when the estate is opened to claim time-sensitive rights that are lost if the deadline passes. The most urgent is the elective share, which must be claimed within six months of being served with the notice of administration or within two years of death, whichever comes first. A spouse may also need to act on homestead, family allowance, and exempt property rights, several of which can disappear simply because no one filed the right paperwork in time.

I have sat across the table from too many widows and widowers in Palm Beach County who assumed that being married meant their rights were automatic. They are not. Florida gives a surviving spouse some of the strongest protections in the country, but almost all of them require an affirmative step, often a written election filed with the court. This article walks through what those steps are, when the clock starts, and why waiting is the single most expensive mistake a surviving spouse can make.

Why a Surviving Spouse Cannot Simply Wait for Distribution

Many beneficiaries assume probate runs on its own and that their share will arrive when it arrives. For a child or a friend named in a will, that is roughly true. For a surviving spouse, it is not. Florida law layers several independent rights on top of whatever the will says, and most of them operate on their own deadlines that run regardless of how slowly the personal representative is moving.

Here is the practical problem. The personal representative, sometimes a stepchild or a sibling of the deceased, has no duty to remind you to assert rights that reduce what they receive. The notice you get in the mail is written in statutory language and rarely says, in plain English, “you have six months to claim a larger share.” If you set that letter aside, the deadline keeps running.

The Elective Share: Florida’s Anti-Disinheritance Rule

Florida does not let a married person fully disinherit a spouse. Under Florida Statutes Chapter 732, Part II, a surviving spouse is entitled to an elective share equal to 30 percent of the elective estate. The elective estate is broader than the probate estate. It reaches certain assets that pass outside of probate, including some jointly held property, certain transfers made during the marriage, payable-on-death accounts, and the net cash surrender value of life insurance on the decedent’s life. The point of that wide net is to stop someone from gutting the probate estate through beneficiary designations while leaving the spouse with the leftovers.

The deadline that catches people

The election is not automatic. Under Florida Statute 732.2135, the surviving spouse (or an attorney, guardian, or agent acting for the spouse) must file the election with the court within the earlier of:

• Six months after the date the spouse is served with a copy of the notice of administration, or
• Two years after the decedent’s date of death.

The court can extend the time in limited circumstances if a request is made before the deadline runs, but you should never plan around an extension. Once the window closes, the right is generally gone. I have reviewed estates where a spouse would have received hundreds of thousands of dollars more under an election and lost it because a notice sat unopened during a period of grief. There is no good way to fix that after the fact.

When an election makes sense and when it does not

The elective share is a choice, not an obligation. If the will already leaves the spouse more than 30 percent of the elective estate, electing usually makes no sense. The calculation also interacts with non-probate assets, pre-marital agreements, and homestead, so it is rarely as simple as multiplying the bank balance by 0.30. A surviving spouse who suspects they were shortchanged should have the numbers run quickly, because the analysis takes time and the deadline does not pause for it. If the dispute escalates, this is the kind of fight that lands in , and having the math done early is what gives a spouse leverage.

Homestead Rights and the Surviving Spouse

Florida’s homestead protections are constitutional, not just statutory, and they are unusually powerful. When a married person dies owning a home that qualifies as homestead, they generally cannot leave it to anyone other than the spouse if there is also a minor child, and there are sharp limits even when there is no minor child. Article X, Section 4 of the Florida Constitution and Florida Statute 732.401 govern how the home passes.

By default, when a decedent is survived by a spouse and descendants, the spouse takes a life estate in the homestead, with the descendants taking the remainder. But the surviving spouse has an alternative. Under Florida Statute 732.401(2), the spouse may elect instead to take an undivided one-half interest as a tenant in common with the descendants. This election must be made within six months of the decedent’s death, and it must be recorded. For many surviving spouses, a half interest they can sell is far more useful than a life estate that locks them into maintaining a house they cannot afford alone. This is another deadline that is easy to miss because nobody is required to explain the choice to you.

Family Allowance and Exempt Property: Smaller Rights, Real Deadlines

Two additional rights are worth claiming because they come off the top, ahead of most creditors and beneficiaries.

1. Family allowance. Under Florida Statute 732.403, the court may award up to $18,000 to support the surviving spouse and the decedent’s lineal heirs the spouse was supporting during administration. It is paid during probate, when cash flow is often tightest, but it must be requested.
2. Exempt property. Under Florida Statute 732.402, the spouse (or children) may claim certain property free of creditor claims, including household furniture and appliances up to $20,000 in value and two motor vehicles meeting statutory limits. The claim of 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. Miss it, and the protection is deemed waived.

None of these are large numbers compared to the elective share, but they are reliable, they are protected from creditors, and they are forfeited by inaction. A surviving spouse should treat them as a checklist item, not an afterthought.

The Notice of Administration Starts Most of the Clocks

The document that triggers the majority of these deadlines is the notice of administration, governed by Florida Statute 733.212. The personal representative serves it on the surviving spouse and other interested persons. It also sets the clock for objections to the validity of the will, the venue, or the qualification of the personal representative, which must generally be filed within three months of service.

If you are a surviving spouse and you receive anything from a probate court or an attorney representing the estate, treat it as urgent mail. Note the date you received it. That single date often determines whether your most valuable rights are still alive. If a personal representative in another state is administering the estate, the same vigilance applies, and the concepts carry over to how a is opened and noticed in jurisdictions like New York.

What a Surviving Spouse Should Do in the First Weeks

Grief and paperwork do not mix well, but the first month after a spouse’s death is when the most important decisions get made. A focused approach prevents the worst outcomes:

• Locate the will and any trust documents, along with deeds, account statements, and life insurance policies. The elective estate calculation depends on knowing what exists outside probate, not just inside it.
• Save every dated document from the court or estate counsel. The service date on the notice of administration is the master clock.
• Do not sign a waiver or receipt without advice. Personal representatives sometimes circulate waivers of accounting or releases early. Signing one can quietly give up rights you did not know you had.
• Get the elective share and homestead numbers run promptly, so the decision to elect is informed and made well before the six-month windows close.

For Palm Beach County residents, the homestead and elective share rules interact with high property values in ways that make professional review almost always worthwhile. You can read more about how a Florida probate case proceeds and what to expect from administration, and if your situation also involves estate planning corrections going forward, our overview of wills and estate documents explains how to keep your own affairs in order. When you are ready to talk specifics, reach out to our Palm Beach office.

When the Estate Crosses State Lines

It is common for Palm Beach residents to own property up north or to have a personal representative living out of state. Spousal rights are governed by the law of the decedent’s domicile for personal property and by the law of the state where real property sits. If part of the estate is in New York, a separate ancillary proceeding may be required there, and a New York probate attorney can coordinate the out-of-state piece. Morgan Legal Group handles these proceedings through its practice and its New York offices, which matters when a surviving spouse’s rights have to be asserted in more than one court at once.

The Bottom Line for Surviving Spouses

Florida protects surviving spouses generously, but protection is not the same as automatic payment. The elective share, the homestead election, the family allowance, and exempt property all require you to act, and most of them run on a six-month or shorter clock that starts with a single piece of mail. If you are a surviving spouse waiting on distribution, the worst thing you can do is wait passively. Find out what you are entitled to, calendar every deadline from the date you were served, and make your elections before the windows close.

Frequently Asked Questions

How long does a surviving spouse have to claim the elective share in Florida?

The election must be filed within the earlier of six months after being served with the notice of administration or two years after the decedent’s date of death. A court may extend the deadline only in limited circumstances, and only if the request is made before the time runs out, so a spouse should never rely on an extension.

What is the surviving spouse's elective share in Florida?

Under Florida Statutes Chapter 732, Part II, the elective share is 30 percent of the elective estate. The elective estate is broader than the probate estate and can include certain joint property, payable-on-death accounts, and the cash surrender value of life insurance, so the calculation usually requires professional review.

Can a surviving spouse be left out of a Florida will entirely?

No. Florida’s elective share statute prevents full disinheritance of a spouse, and homestead protections limit how the marital home can be devised. Even if the will leaves the spouse nothing, the spouse can elect to take 30 percent of the elective estate and assert homestead and family allowance rights, provided the deadlines are met.

What happens to the homestead when a married person dies in Florida?

If the decedent is survived by a spouse and descendants, the spouse receives a life estate in the homestead by default, with descendants taking the remainder. Alternatively, under Florida Statute 732.401(2), the spouse may elect within six months of death to take an undivided one-half interest as a tenant in common, which is often more practical.

Does a surviving spouse need a lawyer to assert these rights?

While not legally required in every instance, the elective share, homestead election, and exempt property claims involve overlapping deadlines and a complex valuation of both probate and non-probate assets. Because the rights are forfeited if not timely claimed, most surviving spouses benefit from having a Florida probate attorney run the numbers and file the elections promptly.