A surviving spouse must act in Florida probate when an estate holds assets that pass through the court, when statutory deadlines threaten valuable rights, or when the will leaves the spouse less than Florida law allows. Most of those rights are not automatic; they are elections the spouse must claim within a set window, and silence usually counts as a waiver. The earliest hard deadlines fall well before a typical estate is settled, so timing matters more than most people expect.
I have handled Boca Raton estates where a grieving spouse assumed everything would simply transfer, only to learn months later that a six-month clock had quietly run out. This article walks through when action is genuinely required, what those deadlines are, and where a surviving spouse can often avoid full formal probate altogether.
When a Florida Spouse Actually Needs to Open Probate
Not every death triggers probate. Florida probate is only necessary for assets titled in the decedent’s sole name that have no beneficiary designation and no surviving co-owner. A surviving spouse frequently inherits a large share of the estate outside of court, which is why so many of our Boca Raton cases qualify for streamlined handling.
Assets that usually bypass probate entirely include:
- Property held as tenants by the entirety — a form of joint ownership available only to married couples, which passes to the survivor by operation of law.
- Bank and brokerage accounts with a pay-on-death (POD) or transfer-on-death (TOD) designation naming the spouse.
- Life insurance, IRAs, and 401(k)s with the spouse named as beneficiary.
- The Florida homestead, which descends under its own constitutional rules rather than through the residuary estate.
When the only probate assets are modest — say, a single account in the decedent’s name, or personal property — the spouse may not need formal administration at all. That is the heart of our practice: getting families through the smallest viable process rather than a year of litigation-style filings.
Summary Administration: The Spouse’s Fast Track
Under Florida Statutes § 735.201, an estate may qualify for summary administration if the non-exempt probate assets total $75,000 or less, or if the decedent has been dead for more than two years. A surviving spouse who is the sole beneficiary can often petition for summary administration and receive an order distributing assets in a matter of weeks rather than months. There is no personal representative appointed, no 90-day creditor period to babysit, and far lower cost.
The catch is that summary administration shifts some creditor risk onto the recipients. If a known creditor is not paid or served, that creditor may pursue the spouse directly after distribution. Before filing, we make a diligent search for creditors and decide whether to serve them. For estates that clearly fit, the summary route is the most spouse-friendly tool Florida offers. You can read more about the broader process on our Florida probate overview.
Disposition Without Administration
For very small estates, Florida allows an even lighter path. Under § 735.301, “disposition of personal property without administration” lets a survivor recover assets when the only property left does not exceed the amount of final illness and funeral expenses (up to a statutory cap) plus exempt property. A surviving spouse who paid the funeral bill can sometimes be reimbursed directly from a small account with a short petition and no formal case. This is genuinely a do-it-with-help procedure, and it is underused.
The Deadlines a Surviving Spouse Cannot Miss
Where Florida probate punishes inaction is in the spousal elections. These are valuable rights, but each one expires. Miss the window and the right is generally gone, regardless of how unfair the result feels.
The Elective Share — Roughly a Six-Month Window
Florida gives a surviving spouse the right to claim an elective share equal to 30% of the elective estate under § 732.201 and following. The elective estate is broad: it reaches far beyond the probate assets to include certain jointly held property, POD accounts, revocable trust assets, and even some transfers made during the marriage. This prevents a spouse from being disinherited by careful titling.
The election must be filed by the earlier of:
- Six months after service of the notice of administration on the spouse, or
- Two years after the date of death.
That six-month trigger is the one that catches people. The clock starts when the notice is served, not when the spouse “feels ready.” A spouse who is happy with the will usually does not elect. But when a will or trust steers assets to children from a prior marriage and leaves the survivor short, the elective share is the spouse’s strongest remedy — and it requires an affirmative, timely filing. New York handles disinheritance differently, and Morgan Legal’s discussion of is a useful contrast for spouses comparing the two states.
Homestead Election — Within Six Months
Florida’s homestead protections are a constitutional matter and create a distinct decision. When a homestead passes to a spouse and descendants, the default outcome is a life estate for the spouse with a remainder to the descendants. Under § 732.401(2), the surviving spouse may instead elect to take an undivided one-half interest as a tenant in common. That election must be made within six months of the decedent’s death and recorded as the statute directs. The choice has real consequences for who pays taxes, insurance, and upkeep, and whether the home can be sold — so it should never be made on autopilot.
Family Allowance and Exempt Property
Two more protections help a spouse keep the household running while the estate is pending:
- Family allowance (§ 732.403): up to $18,000 payable to the surviving spouse and lineal dependents for support during administration. It is not charged against the spouse’s inheritance.
- Exempt property (§ 732.402): household furnishings up to a statutory value, two motor vehicles, and certain other items pass to the spouse free of creditor claims. The claim for exempt property must be filed within the time allowed — generally within four months of the notice of administration or 40 days after termination of any will contest.
These are easy to overlook precisely because they are not large dollar figures, but a spouse who fails to claim exempt property can see those items pulled into the estate to satisfy creditors.
Pretermitted Spouses and Marriages After the Will
A common scenario in second marriages: the decedent signed a will before marrying the surviving spouse and never updated it. Under § 732.301, a spouse omitted from a pre-marriage will may take an intestate share — roughly what they would have received had there been no will — unless the will provided for the spouse, the omission was intentional and shown on the will’s face, or a valid prenuptial waiver exists. This is a powerful default protection, but asserting it still requires the spouse to step forward in the probate proceeding rather than assuming the court will act on its own.
When the Spouse Should Serve as Personal Representative
If formal administration is necessary, the surviving spouse generally has first priority to serve as personal representative under § 733.301, assuming the will does not name someone else and the spouse is qualified. Serving has advantages — control over the timeline, direct access to information — but it also carries fiduciary duties to creditors and other beneficiaries. In a blended family where children from a prior marriage are also beneficiaries, those duties can become a source of conflict. The administrative tasks involved overlap heavily with the issues Morgan Legal outlines in its guide to the , many of which apply equally in Florida.
For spouses who would rather not manage creditors and accounting, declining the role and letting a neutral party or another beneficiary serve is perfectly acceptable — and often the smarter call when relationships are strained.
A Practical Order of Operations
When a spouse comes to us shortly after a death in Palm Beach County, we generally work through the questions in this order:
- Inventory the assets and how they are titled. This determines whether probate is needed at all.
- Confirm the homestead’s status and calendar the six-month election window.
- Decide on summary versus formal administration based on asset value and creditor exposure.
- Calendar every spousal election — elective share, exempt property, family allowance — the day we are retained.
- Evaluate any pretermitted-spouse or elective-share claim if the will shortchanges the survivor.
Done in that sequence, most surviving spouses in our experience either avoid formal probate entirely or move through summary administration quickly, while still preserving the elections that protect them. If you want to compare your situation against a checklist before we talk, our pages on wills and estate documents and the firm’s are good starting points, and you can always reach our office through the contact page.
The Bottom Line for Surviving Spouses
Florida law is, on balance, generous to surviving spouses — the elective share, homestead protections, family allowance, and exempt property exist precisely to keep a spouse from being left out in the cold. But generosity with a deadline attached is only useful to those who act. The single most important step after a spouse’s death is to identify, in writing, every clock that may be running. In a small or summary-administration estate, that often takes one consultation. Waiting six months to “deal with it later” is how good rights quietly disappear.
Frequently Asked Questions
How long does a surviving spouse have to claim the elective share in Florida?
A surviving spouse must file the elective share election by the earlier of six months after being served with the notice of administration, or two years after the date of death, under Florida Statutes § 732.201 and following. The elective share is 30% of the elective estate, which includes many non-probate assets. Because the six-month trigger starts when the notice is served, spouses should calendar the deadline immediately.
Can a surviving spouse avoid full probate in Florida?
Often, yes. Assets held as tenants by the entirety, accounts with pay-on-death or transfer-on-death designations, and life insurance or retirement accounts naming the spouse pass outside probate. When the remaining probate assets are $75,000 or less, or the decedent died more than two years ago, the spouse may use summary administration under § 735.201, a much faster and cheaper process than formal administration.
What is the Florida homestead election for a surviving spouse?
When a homestead passes to a spouse and descendants, the default result is a life estate for the spouse with a remainder to the descendants. Under § 732.401(2), the spouse may instead elect an undivided one-half interest as a tenant in common. This election must be made within six months of death and recorded as required, and it affects who controls, maintains, and can sell the home.
Does a surviving spouse automatically inherit if there is no will?
Under Florida’s intestacy rules, a surviving spouse inherits the entire estate if the decedent left no descendants, or if all descendants are shared children of the couple. If the decedent had children from another relationship, the spouse and those children typically split the intestate estate. These shares apply only to probate assets; jointly titled and beneficiary-designated property passes separately.
What protections help a spouse pay bills while probate is pending?
Florida provides a family allowance of up to $18,000 for the spouse and dependents under § 732.403, plus exempt property under § 732.402, which includes household furnishings up to a statutory value and two motor vehicles free of most creditor claims. The exempt property claim has its own deadline, generally within four months of the notice of administration, so it should be filed promptly.
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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 .
