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Florida Probate, Trust and Estate Blog

Surviving Spouse Rights in Florida

Florida law grants surviving spouses a number of important rights and benefits.  It is imperative that a surviving spouse retain counsel with significant experience in the Florida probate process.

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Homestead Rights Waived By Deed Boilerplate Language

In the most recent Florida homestead case, the appellate court rules that boilerplate language in a deed operates as a waiver of the spouse's homestead rights.

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Attorney Fees on Value of Homestead Property?

Florida homestead property has a unique status in Florida probate law.  Homestead property devised to a family member is "protected homestead" property, meaning that the property is protected from the creditors of the deceased.  But that's just the beginning of property being classified as homestead property. 

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Florida Homestead, Divorce, Second Spouses, and Life Estates

Often times homestead can be confusing.  Add on divorce, a marital settlement agreement, a second spouse, and a life estate, and the situation becomes very complicated.  In the recent case of Friscia v. Friscia, the Florida probate court and the Florida Second District Court of Appeal encountered a family situation involving all of these things, and did a great job of clearly articulating how their decision was reached.

In this case, Nora (Second Wife) is the surviving spouse of Vincent J. Friscia (Decedent), and the personal representative of Decedent’s estate.  Robin Friscia is Decedent’s former wife (Former Wife) and mother of Decedent’s two kids, Nicholas and Thomas.

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Florida Homestead in Revocable Trust

Florida homestead is one of the most important rights of surviving spouses when a decedent passes away as a Florida resident.  The surviving spouse is entitled to no less than a life estate in the property, and could be entitled to all of the homestead property.  If the Florida homestead is held in a revocable trust, are the rights of the surviving spouse altered? 

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Florida Inherited IRA Still Protected in Bankruptcy, Even in Light of U.S. Supreme Court Case Clark v. Rameker

On June 12, 2014, the Supreme Court of the United States issued its opinion in the matter of Clark v. Rameker, 573 U. S. ____, 2014 U.S. LEXIS 4166 (2014).   In a landmark decision, the Supreme Court held that Inherited IRAs are not “retirement funds” within themeaning ofthe Bankruptcy Code, and as a result, such accounts are assets in the hands of the trustee in bankruptcy.  Nevertheless, for the majority of states that use “State” exemptions in bankruptcy as opposed to the Federal exemptions, state law, not federal law, may control whether inherited IRA’s are protected.  Florida residents can likely still protect inherited IRA’s in bankruptcy.

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Surviving Spouse Can Have Choice of Rights

Can you leave a surviving spouse a choice between a statutory minimum benefit and an alternative bequest?  In Dinkins v. Dinkins, 2013 Fla. App. LEXIS 11732 (Fla. Dist. Ct. App. 5th Dist. July 26, 2013), the Florida appellate court said yes - a choice is acceptable.

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Can a Step-Child Inherit Protected Homestead Free of Creditor Claims and Expenses of Administration?

Florida law also provides that the protected homestead is not subject to administrative expenses of the estate.  Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). Protected Homestead is also not subject to creditor claims. Id. See also Art. X, § 4(a)(1), Fla. Const.  The Florida Constitution further provides that such exemptions inure to the heirs of the owner. Art. X, § 4(b), Fla. Const.  An heir is defined as a person who is “entitled under the statutes of intestate succession to the property of the decedent.” Fla. Stat. 731.201(20).  Therefore, even in a testate estate, we look to the statute of intestacy to determine who is an "heir" that can inherit protected homestead. 

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New Florida Homestead Law for Surviving Spouse

Florida's Homestead Law provides unique protections for surviving spouses.


Under the Florida Homestead Law, surviving spouses are entitled to no less than a "life estate" in the homestead property, and depending on the family composition, the surviving spouse may be entitled to the entire homestead property.  The Florida Homestead protections are rights created under the Florida Constitution, to fully protect the surviving spouse after the death of the first spouse to pass away.  

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