When we talk about probate Fl regulations and practices, one of the most commonly asked questions that we get asked at Weidner Law is what rights the decedent’s surviving family have. Today we’re going to take a look at the answer to that question, but keep in mind that we are only talking about Florida law here. If you have questions about probate in other U.S. states, you should contact a probate attorney in those states who will be able to provide you with more accurate information.

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Probate Fl: The Rights of the Decedent’s Surviving Family

As the surviving family of the decedent, you may find yourself with unanswered questions when it comes to your rights according to the Florida probate process. This isn’t uncommon, particularly in situations where the will of the deceased did not bequeath anything to them. It is the practice of probate Fl law to protect the surviving spouse and certain surviving children from being completely disinherited by the deceased.

Probate Fl Stance on the Rights of the Decedent’s Surviving Family

According to probate Fl regulations outlined by the Florida State Bar, even if the decedent’s will leaves nothing to their surviving spouse and children, they may be entitled to assets from the probate estate. This practice is built into the law as a means of protecting the surviving spouse and surviving children (in some circumstances) from being totally disinherited.

The Rights of a Surviving Spouse in Probate Fl Proceedings

In the state of Florida, a surviving spouse may have rights in the homestead real property of the decedent.

The surviving spouse may also be permitted to claim an “elective share” from the probate estate of the decedent. The “elective share” is usually considered to be 30% of ALL of the decedent’s assets which includes probate and non-probate assets. A spouse is permitted to waive their rights to an elective share of the estate if done so in a valid pre or post-marital agreement.

The surviving spouse may also be entitled to a family allowance and rights in exempt property before the final distribution of assets of the estate. This is designed to provide them with the funds necessary for living while the probate process is underway. This family allowance is paid to the family instead of creditors who generally have their accounts settled from the probate estate prior to any distribution of assets or property. A spouse is permitted to waive their right to a family allowance or exempt property if done so in a valid pre or post-marital agreement.

The spouse of the decedent whose will was dated prior to the marriage may also be entitled to a share of the probate estate even if they were not provided for in the will.

The Rights of Surviving Children in Probate Fl Proceedings

In some circumstances, the surviving children of the decedent also have a right to claim an “elective share” of the probate estate and rights to exempt property so that they have access to necessary funds and resources prior to the final distribution of the decedent’s estate.

Surviving children of the decedent who were born after the valid dated will may also be entitled to a share of the probate estate even if they were not provided for in the last will and testament of the deceased.

The Rights of Surviving Family in Probate Fl Proceedings with No Valid Will in Place

If an individual dies without a valid will they are referred to as “intestate”. Under probate Fl proceedings, the intestate heirs are entitled to an equal share of the probate estate – this is referred to as “per stirpes” style. This does not mean that the spouse and children of the deceased all have rights to equal shares of the estate, Florida intestate succession guidelines do apply.

  • If the decedent had a spouse but no children, their spouse is the heir to the estate.
  • If the decedent had a spouse and children with that spouse, their spouse is the heir to the estate.
  • If the decedent had a spouse and children with that spouse, and children from another relationship, their spouse is heir to 50% of the estate and the children from other relationships are heirs to the remaining 50% of the estate.
  • If the decedent had a spouse and children with that spouse, and the spouse has children from another relationship, the spouse is heir to 50% of the estate and the children with the spouse are heirs to the other 50% of the estate.
  • If the decedent had children but no spouse, the children are heir to the entire estate.

By law, children who have been adopted have the same rights as biological children. Children who are conceived before the decedent’s death but born after their death are also considered as biological children.

Pursuing Your Rights as a Surviving Spouse or Child Under Probate Fl Proceedings

If you are the surviving spouse or child who has not been provided for in the will of the deceased and you wish to pursue your rights as the decedent’s family, it’s important that you seek the assistance of a Florida probate lawyer. In order to enforce your statutory rights as a spouse or child of the decedent, you must have a thorough knowledge of the laws and court procedures required to enforce your rights which only a skilled Florida probate attorney can provide.

Do You Need a Probate Attorney for Probate Fl Questions or Procedures?

If you need a probate attorney for probate Fl questions or procedures, Weidner Law can help. Just pick up the phone and give us a call at 727-954-8752 or send us a message directly through our probate lawyer contact information form here.

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