When a Surviving Spouse Must Act in Florida Probate: Deadlines, Rights, and the Homestead Clock

When a Florida resident dies, the surviving spouse holds several rights that do not enforce themselves and several that vanish if they are not claimed in time. In practical terms, a surviving spouse must act in Florida probate whenever the will (or the absence of one) gives them less than the law allows, or whenever protected assets like the homestead need a formal election. The most time-sensitive of these rights, the elective share, must generally be claimed within the earlier of six months after the surviving spouse is served with the notice of administration or two years after the date of death under Florida Statutes § 732.2135.

That sentence carries more weight in Boca Raton than almost anywhere else in the state. Palm Beach County estates are frequently real-property-heavy: a waterfront condo, a homesteaded house off Federal Highway, a rental in Delray, maybe a parcel up in Martin County. When most of the wealth sits in land rather than liquid accounts, the spouse’s decisions about homestead and the elective share stop being academic. They determine who actually ends up owning the roof over the survivor’s head.

The four spousal rights that run on a clock

Florida law treats a surviving spouse generously, but it ties the most valuable protections to deadlines and affirmative filings. A spouse who sits quietly and waits to “see what the will says” can forfeit tens of thousands of dollars, or a life interest in the family home, simply by missing a window. Four rights matter most:

• The elective share — a 30% claim against the decedent’s elective estate (§ 732.2065).
• Homestead rights — protection of the primary residence from forced devise, plus an election that reshapes ownership (§ 732.401, § 732.4015).
• Exempt property — certain household goods and vehicles that pass outside the will (§ 732.402).
• Family allowance — support money during the administration (§ 732.403).

Each has its own statutory deadline and its own filing. None of them is automatic. The personal representative is not obligated to hand them over uninvited, and in contested estates, no one will.

The elective share: 30% of the elective estate, and a six-month fuse

Florida’s elective share exists so that a spouse cannot be disinherited. Under § 732.201, the surviving spouse of a person who died domiciled in Florida is entitled to a share of the elective estate. Section 732.2065 fixes that share at 30 percent.

The trap most people fall into is assuming the 30% applies only to whatever passes through the probate court. It does not. Florida uses an augmented, or “elective,” estate. The calculation reaches far beyond the probate file to capture assets the decedent controlled at death, including:

• The probate estate itself;
• The decedent’s protected homestead;
• Pay-on-death and transfer-on-death accounts;
• Revocable (living) trust assets;
• Certain jointly held property and interests transferred within a year of death.

This is why the elective share so often surprises families who thought a living trust or a beneficiary designation had quietly “avoided probate.” It avoided the probate court; it did not avoid the spouse’s claim. A husband who funds a $2 million revocable trust naming his children and leaves his wife a token bequest has not defeated her elective share. He has merely changed which lawyers will be arguing about it.

How the deadline actually works

The election must be filed on or before the earlier of two dates under § 732.2135:

1. Six months after the surviving spouse is served with a copy of the notice of administration; or
2. Two years after the decedent’s date of death.

In a normally administered estate, the six-month clock is the one that bites. Service of the notice of administration starts it, and grief, travel, or simple unfamiliarity with the process eats the months quickly. The statute does allow the spouse to petition for an extension for good cause shown, but a court is not required to grant one, and relying on an extension is a poor substitute for filing on time. Once the deadline passes without an election or a timely extension request, the right is gone.

A point worth underlining for Boca Raton couples: the elective share is calculated as a value, not as a deed to specific property. A spouse who elects does not automatically receive the beachfront condo. They receive 30% of the elective estate’s value, satisfied from various sources under a statutory order. If keeping a particular property matters, that goal has to be negotiated, not assumed.

Homestead: the most important election in a real-property estate

For estates where the family home is the centerpiece, homestead is usually the issue that decides everything. Florida’s constitution protects a homestead from forced sale by most creditors and restricts how it can be devised when there is a surviving spouse or minor child. If the decedent tried to leave the homestead to anyone other than the spouse while a spouse was living (and there was no valid waiver), that devise is generally invalid.

When a decedent is survived by a spouse and one or more descendants, § 732.401 gives the survivor a critical choice. By default, the spouse takes a life estate in the homestead, with a vested remainder to the descendants. But the spouse may instead elect to take an undivided one-half interest as a tenant in common, with the other half passing to the descendants.

That election is not cosmetic. Consider a homesteaded Boca house worth $900,000:

• Life estate (the default): the spouse may live there for life but bears responsibility for taxes, insurance, and upkeep, and cannot freely sell the whole property. The children own the remainder and must agree to any sale.
• One-half tenancy in common (the election): the spouse owns half outright, can force a sale through partition, and walks away with real liquidity, but loses the guaranteed right to occupy the home for life.

The right choice depends on the survivor’s age, health, cash needs, and relationship with the decedent’s children. An 80-year-old widow who wants to stay put may prefer the life estate. A younger surviving spouse who needs to relocate and cash out may prefer the half interest. The election under § 732.401 must be made within six months of the decedent’s death and recorded as the statute directs, so this decision cannot be deferred while the rest of the estate sorts itself out.

Because homestead, title, and the elective share interact, real-property-heavy estates reward early, coordinated planning. The questions that arise in a Florida home are structurally similar to those that surface when an out-of-state estate owns Florida real property, an issue our colleagues handle when a involves a Florida residence, and one reason families with property in two states should not treat the two administrations as unrelated.

Exempt property and the family allowance: smaller, but still on a deadline

Two further rights give the surviving spouse immediate, practical relief while the estate is administered.

Exempt property under § 732.402. The surviving spouse (or, if none, the decedent’s children) is entitled to certain assets that pass outside the will and outside most creditor claims:

• Household furniture, furnishings, and appliances in the decedent’s usual residence, up to a net value of $20,000 as of the date of death;
• Up to two motor vehicles regularly used by the decedent or immediate family;
• Qualified tuition program funds and certain death benefits for teachers and school administrators.

The petition to determine exempt property must be filed on time, generally no later than four months after service of the notice of administration (or 40 days after the termination of certain proceedings). Miss it, and the property is treated as a general estate asset, exposed to creditors and to the will’s distribution scheme.

Family allowance under § 732.403. When the decedent was domiciled in Florida, the surviving spouse and dependent lineal heirs are entitled to a reasonable allowance out of the estate for maintenance during administration. The total may not exceed $18,000, and it is payable in a lump sum or installments. For a survivor suddenly cut off from a spouse’s income while the estate is tied up, this allowance can be the difference between making the mortgage payment and falling behind on the very homestead the rest of the case is fighting over.

What the surviving spouse should do, in order

Florida probate is unforgiving of inaction, but the path is manageable when taken in sequence:

1. Secure the original will and the death certificate. Administration cannot proceed cleanly without them.
2. Calendar the date you were served with the notice of administration. That single date drives the elective share and exempt property deadlines.
3. Inventory non-probate assets. Trusts, POD/TOD accounts, and joint property all feed the elective estate, so they must be identified before anyone can value a 30% claim.
4. Decide the homestead question early. Life estate or one-half interest is a six-month decision under § 732.401.
5. File the protective petitions. Exempt property and family allowance petitions should go in well before their deadlines, not at the buzzer.
6. Get counsel before signing any waiver or quitclaim. Spouses are sometimes asked to “simplify things” by signing away rights they do not understand.

The Florida Probate Code recognizes more than one route to administration, and which one applies affects how fast these clocks run. Smaller or simpler estates may qualify for summary administration rather than formal administration, a distinction much like the one our team explains regarding the in other jurisdictions. The procedural track matters because it changes when, and whether, a notice of administration is served, which in turn changes when the spouse’s deadlines begin.

When a spouse may not need to act, and when silence is a mistake

Not every surviving spouse must scramble. If the decedent left a well-drafted estate plan that gives the spouse everything (or more than the elective share would yield), and the homestead passes cleanly to the survivor, there may be nothing to elect. The spouse simply receives what the plan provides. Many Boca Raton couples who planned together fall into this comfortable category.

The danger is the in-between case: a blended family, a second marriage, a will signed years before the marriage, a trust that quietly favors children from a prior relationship, or a homestead the decedent tried to leave to someone else. In those estates, silence is not neutrality. It is forfeiture. The elective share and the homestead election are use-it-or-lose-it rights, and the survivor who waits for someone to volunteer them will usually wait past the deadline.

Because these rights interlock with title, creditor claims, and tax exposure, a surviving spouse in Palm Beach County should treat the first weeks after a death as a planning window, not a waiting room. Our Florida practice handles exactly these questions, and reviewing the estate’s structure early, before the six-month clock has run, is almost always cheaper than litigating a missed deadline later. If you are unsure whether your spouse’s plan protected you, or whether the home is at risk, the prudent first step is a focused review of the will, the deed, and the beneficiary designations. You can reach our office through the contact page, and you may also want to review how Florida treats wills when a spouse is involved.

Florida gives surviving spouses real protection. It just does not deliver that protection to anyone who waits too long to ask for it.

Frequently Asked Questions

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

Under Florida Statutes section 732.2135, the election must be filed by the earlier of six months after the surviving spouse is served with the notice of administration or two years after the date of death. The court may extend the deadline for good cause if a timely petition is filed, but the right is otherwise lost once the window closes.

What is the surviving spouse's share of a Florida estate?

The elective share is 30 percent of the decedent’s elective estate under section 732.2065. The elective estate is broader than the probate estate. It includes the probate assets plus the protected homestead, revocable trust assets, POD and TOD accounts, and certain jointly held or recently transferred property.

Can a Florida spouse keep the family home if the will left it to the children?

Generally yes, because Florida’s constitution restricts devising a homestead away from a surviving spouse. Under section 732.401, the spouse takes a life estate by default but may elect within six months of death to take an undivided one-half interest as a tenant in common instead. The right choice depends on whether the survivor values lifetime occupancy or liquidity.

What is exempt property for a surviving spouse in Florida?

Under section 732.402, the surviving spouse is entitled to household furniture, furnishings, and appliances up to a net value of $20,000, plus up to two regularly used motor vehicles and certain education and death benefits. These assets pass outside the will and outside most creditor claims, but a petition to determine exempt property must usually be filed within four months of service of the notice of administration.

Does the surviving spouse get support money during probate?

Yes. Section 732.403 provides a family allowance for the surviving spouse and dependent lineal heirs to cover maintenance during administration, capped at a total of $18,000. It can be paid as a lump sum or in installments and is in addition to homestead, exempt property, and the elective share.