One of the biggest surprises for Miami couples is this: in Florida, you cannot simply disinherit your spouse. Even a carefully drafted will can be overridden by a set of protective spousal rights. Whether you live in Coral Gables, Brickell, or out toward Kendall, this checklist walks through the rights your surviving spouse keeps no matter what your documents say.
Right 1: The 30% Elective Share
Under Florida law (Section 732.2065 and the sections that follow), a surviving spouse is entitled to claim an elective share equal to 30% of the elective estate. The elective estate is broad. It reaches far beyond what passes under your will, pulling in revocable trust assets, certain accounts with pay-on-death beneficiaries, and some property transferred in the years before death. Checklist item: never assume a beneficiary designation alone defeats this right.
Right 2: Homestead Protection
Florida’s homestead protection (Article X, Section 4 of the state constitution) is fierce, and it shapes nearly every Miami-Dade estate. If you are survived by a spouse or minor child, you generally cannot freely devise your homestead to whomever you wish. A surviving spouse typically receives a life estate (or can elect a one-half tenancy-in-common interest) in the home. For a couple with a condo on Biscayne Bay, this rule can completely reroute who ends up owning the property.
Right 3: Family and Exempt Property Allowances
Florida also gives a surviving spouse a family allowance for support during administration and rights to certain exempt property, such as household furnishings and two motor vehicles. These come off the top, before general distribution. Checklist item: budget for these claims when estimating what other heirs will actually receive.
Your Pre-Planning Checklist
- Confirm what your spouse is entitled to by law before deciding what to leave by document.
- Inventory the elective estate, including trusts, joint accounts, and POD/TOD designations, not just the will.
- Address homestead deliberately. A Lady Bird (enhanced life estate) deed can help with non-homestead property, but homestead devise restrictions still apply when a spouse or minor child survives.
- Consider a marital or waiver agreement. Spouses can waive elective share and homestead rights, but only through a valid written agreement with proper disclosure.
- Coordinate beneficiary forms on life insurance, IRAs, and 401(k)s with your overall plan so they do not accidentally trigger or defeat spousal claims.
Why This Matters in Miami
Many Miami households are blended families or include a spouse who is not a U.S. citizen, which adds tax-coordination wrinkles on the federal side. Florida itself imposes no state estate or inheritance tax, so the planning conversation here centers on these spousal protections and homestead, not state death taxes. Getting the elective share and homestead right is what keeps a second marriage, a prior child, and a beloved condo from colliding in probate court.
Talk to a Florida Attorney
Elective share and homestead rules are technical and fact-specific, and they interact with trusts, deeds, and marital agreements in ways that are easy to get wrong. Before you rely on any do-it-yourself plan, sit down with a licensed Florida estate planning attorney who can review your documents against current Florida law and your family’s situation.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles how a will is contested in New York.
