A surviving spouse in Florida probate must act when the law imposes a deadline that, if missed, permanently forfeits a right or benefit. The most time-sensitive of these are the elective share (election filed within roughly six months of service of the notice of administration or two years of death, whichever is earlier), the homestead election between a life estate and an undivided one-half interest, and the window to respond to a notice to creditors if the estate carries debt. Because Palm Beach estates so often involve aggressive creditors and contested claims, a spouse who waits to be told what to do is usually a spouse who loses leverage.
I have spent years walking surviving spouses through the Florida probate process, and the pattern repeats itself. Grief slows people down. The mail piles up. By the time someone reads the notice of administration carefully, half the clock has already run. This article lays out, in plain terms, exactly when a surviving spouse must move, what each right is worth, and how creditor activity changes the calculus.
The First 30 Days: Why a Surviving Spouse Should Not Wait for the Estate to Open
Florida probate does not start automatically. Someone must file a petition to open the estate, and that someone is usually the person named as personal representative in the will. If the deceased spouse named the surviving spouse, the path is straightforward. If the will names a child from a prior marriage, a sibling, or a business partner, the spouse may find herself on the outside of an administration that controls assets she depends on.
Under Florida Statutes section 733.301, a surviving spouse has the first right to serve as personal representative when the decedent dies intestate, and statutory preference even when a will exists in some circumstances. That preference evaporates if you sleep on it. Acting early — retaining counsel, gathering the will and death certificate, identifying assets — is not about being adversarial. It is about not being left out of a process that will distribute everything you and your spouse built.
Two practical truths I tell every client in the first meeting:
- Jointly titled and beneficiary-designated assets usually pass outside probate. Joint bank accounts, payable-on-death accounts, and life insurance with a named beneficiary do not wait for the court. Knowing what is probate property and what is not tells you how urgent the estate really is.
- The clock that matters most is tied to a document you receive, not to the date of death alone. Several of a spouse’s deadlines start running when she is served with the notice of administration. Read that notice the day it arrives.
The Elective Share: Florida’s 30% Guarantee a Spouse Can Lose by Silence
Florida does not let a spouse be disinherited. Under section 732.201 and the sections that follow, a surviving spouse is entitled to an elective share equal to 30% of the elective estate. The elective estate is broad. It reaches far beyond the probate estate to include certain revocable trust assets, jointly held property, payable-on-death accounts, and transfers the decedent made to keep property out of the spouse’s reach. This is the legislature’s answer to the disinheritance loophole.
Here is the part that surprises people: the elective share is not automatic. You must affirmatively elect it. Under section 732.2135, the election must be filed by the earlier of:
- Six months after the date the surviving spouse is served with a copy of the notice of administration; or
- Two years after the decedent’s date of death.
Miss that window and the right is gone. I have seen spouses walk away from six-figure shares because no one explained that the will leaving them “everything in the house and the Buick” was worth a fraction of their statutory entitlement — and that the entitlement had a deadline. The election can sometimes be extended for good cause if requested before the deadline runs, but you cannot resurrect a dead right after the fact.
Whether to take the elective share is a separate strategic question. Sometimes the will already leaves the spouse more than 30%. Sometimes the estate is so debt-laden that the elective estate calculation is the spouse’s best protection against creditors reaching her standard of living. That analysis is exactly where experienced counsel earns its keep, and it is closely related to the broader question of — a problem our colleagues handle in New York as well as Florida.
Homestead: The Election Between a Life Estate and a One-Half Interest
Florida’s homestead protection is constitutional, and it is generous, but it comes with a choice that the surviving spouse must make. When a decedent is survived by a spouse and descendants, the homestead does not simply pass under the will. Historically, the spouse received a life estate with a remainder to the descendants — an arrangement that often produced friction, because the life tenant pays taxes and upkeep while the remaindermen wait.
Section 732.401 now gives the surviving spouse an election: keep the traditional life estate, or instead take an undivided one-half tenancy-in-common interest with the descendants taking the other half. This election must generally be made within six months of the decedent’s death and recorded in the public records of the county where the homestead sits. For Palm Beach properties — where the homestead is frequently the single largest asset — this choice can mean the difference between being a life tenant trapped in an aging house and being a co-owner who can force a sale and walk away with cash.
There is a second homestead reality worth stating plainly: creditor protection survives death and passes to the heirs. Florida homestead is shielded from most creditors of the decedent. For an estate burdened by medical bills, credit card debt, or a business judgment, the homestead is often the one asset creditors cannot touch — which is why correctly preserving and electing on the homestead is central to a creditor-heavy estate.
Family Allowance and Exempt Property: Cash and Assets a Spouse Can Claim Quickly
Probate can take months. Bills do not pause. Florida provides two near-term protections a surviving spouse should claim early:
- Family allowance. Under section 732.403, the spouse (and lineal heirs the decedent was supporting) may receive a family allowance of up to $18,000 to live on during administration. It is paid ahead of most claims and is not charged against the spouse’s other shares. It will not appear unless someone asks for it.
- Exempt property. Under section 732.402, the spouse may claim exempt property — household furnishings up to a statutory value, two motor vehicles used regularly by the family, and certain education and death benefits — free of creditor claims. The election to take 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 proceeding contesting the will. Again, a deadline; again, a right that disappears with silence.
In creditor-heavy estates these are not small comforts. Exempt property removes specific assets from the pool creditors can reach, and the family allowance gives the spouse breathing room while the larger fights play out.
How Creditor Claims Reshape Every Deadline
This is where Palm Beach estates get complicated, and where a surviving spouse’s timing matters most. The personal representative must publish a notice to creditors and serve known or reasonably ascertainable creditors directly. Under section 733.702, a creditor generally must file its claim within the later of three months after the first publication of the notice or 30 days after being served. The outer boundary is the two-year statute of repose in section 733.710 — after two years from death, most claims are barred entirely, served or not.
Why does a spouse care about creditor deadlines? Because creditors are competing with her for the same dollars, and Florida ranks who gets paid first. Section 733.707 sets the order — administrative costs, then funeral expenses, then taxes and debts to the United States, then certain medical expenses of the last 60 days, then the family allowance, and so on. A spouse who has properly claimed her allowance, exempt property, and homestead sits in a far stronger position than one who let those priorities lapse.
Three moves I urge surviving spouses to make whenever creditors are circling:
- Insist that the estate object to defective or late claims. A claim filed after the deadline can be struck — but only if someone files an objection within 30 days. Silence ratifies the debt.
- Protect homestead and exempt assets first. These are the categories creditors cannot reach. Documenting them early keeps them out of the negotiation.
- Weigh the elective share against the debt load. Because the elective estate is calculated by statute and certain spousal protections come ahead of general creditors, the election sometimes shields more value than accepting the will’s gifts outright.
When a claim is disputed — a contractor insisting on payment, a relative asserting a loan that was really a gift, a business partner with a murky promissory note — the estate may end up in litigation. That is its own discipline. Our New York colleagues describe the mechanics well in their overview of , and the strategic instincts carry across state lines even though Florida’s statutes control here.
What a Surviving Spouse Should Do, and When: A Timeline
Every estate is different, but a Palm Beach surviving spouse can orient herself to a rough sequence:
- Immediately: Locate the original will, order multiple certified death certificates, secure the home and any non-probate accounts, and consult a probate attorney before signing anything.
- Within the first month or two: Determine whether you should serve as personal representative and ensure the estate is opened. Identify probate vs. non-probate assets.
- Within 6 months of death: Make the homestead election (life estate vs. one-half interest) and record it.
- Within 6 months of being served the notice of administration (or 2 years of death, whichever is earlier): File the elective share, if taking it.
- Within 4 months of service (or 40 days after a will contest ends): Claim exempt property; request the family allowance early.
- As claims arrive: Object to late or invalid creditor claims within 30 days; preserve protected assets.
None of this requires the spouse to become an expert in the Florida Probate Code. It requires acting before the clocks run out — which means getting counsel involved early rather than after a deadline has quietly closed. For families with property and litigation exposure in both states, our coordinates the full picture.
If you are a surviving spouse trying to understand your rights, start by reviewing your spouse’s will and estate documents, then map them against the Florida probate timeline. When you are ready to protect what is yours, reach out for a consultation before the next deadline arrives.
Frequently Asked Questions
How long does a surviving spouse have to file for the elective share in Florida?
The election must be filed by the earlier of six months after the spouse is served with a copy of the notice of administration, or two years after the decedent’s date of death, under Florida Statutes section 732.2135. The deadline can sometimes be extended for good cause if requested before it runs, but missing it permanently forfeits the 30% elective share.
What is the difference between the homestead life estate and the one-half interest election?
Under section 732.401, a surviving spouse can keep the traditional life estate in the homestead (with descendants holding the remainder) or instead elect an undivided one-half tenancy-in-common interest, with descendants taking the other half. The election must generally be made within six months of death and recorded in the county where the property sits. The one-half interest lets the spouse force a sale, while the life estate lets her remain in the home for life.
Can creditors reach a surviving spouse's homestead or exempt property?
Generally no. Florida’s constitutional homestead protection survives death and passes to heirs free of most creditor claims, and statutory exempt property under section 732.402 (household furnishings, two vehicles, certain benefits) is also shielded. Properly claiming these assets keeps them out of the creditor pool, which is critical in debt-heavy estates.
What is the family allowance and how does a spouse get it?
Under section 732.403, a surviving spouse and lineal heirs the decedent was supporting may receive a family allowance of up to $18,000 to live on during administration. It is paid ahead of most creditor claims and is not charged against the spouse’s other shares, but it must be requested — it is not awarded automatically.
Should a surviving spouse always take the elective share?
Not necessarily. If the will already leaves the spouse more than 30% of the elective estate, electing may reduce what she receives. But in estates with heavy creditor exposure, the elective share calculation and spousal priorities can shield more value than accepting the will’s gifts. The decision should be made with a probate attorney after comparing the will, the elective estate, and the estate’s debt load.
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For more on our Florida practice, see our overview of probate in Palm Beach. Morgan Legal Group's affiliated New York office also handles .
