When a Surviving Spouse Must Act in Florida Probate: Deadlines, Rights, and Hard Choices

In Florida probate, a surviving spouse must usually act within a window of roughly six months to two years after the death, because the most valuable spousal rights — the elective share, homestead protection, exempt property, and family allowance — are governed by statutory deadlines that do not pause for grief, distance, or a slow-moving executor. Waiting for the personal representative to “handle everything” is the single most common way a surviving spouse forfeits money the law set aside for them. The right move is to identify which rights apply, then calendar each deadline before the estate distributes assets.

I have sat across the table from too many widows and widowers who came in eighteen months after a funeral, holding a will that left them almost nothing, asking whether anything could be done. Sometimes the answer is yes. Often the honest answer is that the most powerful tool — the elective share — quietly closed months earlier. This article walks through what a surviving spouse in Florida actually needs to do, and when.

The first question: did the spouse die with a will, and what does it say?

Florida law treats a surviving spouse differently depending on whether there is a valid will, and on what that will leaves to the spouse. Before anything else, get a copy of the will (or confirm there is none) and locate the death certificate. Under rules, the person nominated as personal representative must deposit the original will with the clerk of court in the county of residence within ten days of learning of the death, per Florida Statutes section 732.901. If a family member is sitting on the original will, that is a problem worth raising early.

From there, three broad scenarios shape what the spouse must do:

• No will (intestate). The surviving spouse’s share is set by statute, not by anyone’s wishes.
• A will that provides generously for the spouse. The spouse may simply need to monitor the administration and protect homestead.
• A will that disinherits or shortchanges the spouse. This is where deadlines bite, and where the elective share becomes the central question.

If there is no will: the intestate share

Under section 732.102, a surviving spouse’s intestate share depends on whether either spouse had descendants from another relationship. If all of the decedent’s surviving descendants are also descendants of the surviving spouse — and the spouse has no other descendants — the spouse takes the entire intestate estate. If there are descendants from a prior relationship on either side, the spouse takes one-half. This is one area where blended families produce surprising results, and where a spouse should not assume “everything comes to me.”

The elective share: Florida’s anti-disinheritance rule and its deadline

Florida does not let a married person fully disinherit a spouse. Sections 732.201 through 732.2155 give the surviving spouse the right to claim an elective share equal to 30% of the elective estate. The elective estate is broader than the probate estate — it reaches certain non-probate transfers, including revocable trust assets, pay-on-death accounts, jointly held property, and some transfers made shortly before death. This breadth is intentional. The Legislature anticipated that a spouse might try to route assets around the will, so the elective estate sweeps many of those workarounds back in.

Here is the deadline that I wish every surviving spouse knew. Under section 732.2135, the election must be filed by the earlier of:

1. Six months after service of the notice of administration on the surviving spouse, or
2. Two years after the decedent’s death.

The court can extend the six-month period in limited circumstances if the spouse files a motion before the deadline runs, but no extension reaches past the two-year outer limit. Miss it, and a 30% claim against a substantial estate can simply evaporate. I treat the elective share deadline the way an emergency room treats a clock on a stroke patient: everything else can wait, that cannot.

A few practical notes that trip people up:

• The election can be made by the spouse, or by a guardian or agent under a power of attorney with proper authority — important when the surviving spouse is incapacitated. Disputes over who may elect on an incapacitated spouse’s behalf are exactly the kind of contested guardianship-to-probate transition that derails estates, and they need to be sorted out fast given the running clock.
• A valid prenuptial or postnuptial agreement can waive the elective share under section 732.702. If one exists, have it reviewed for enforceability before assuming the right is gone.
• Electing the elective share is not always the right financial call. If the will already leaves the spouse more than 30% of the elective estate, electing could reduce the inheritance. This is a math problem, not a reflex.

Homestead: the protection that survives the will

Florida’s homestead protection is constitutional, not merely statutory, and it overrides contrary directions in a will. Article X, section 4 of the Florida Constitution, together with section 732.401, restricts how a homestead can pass when the decedent is survived by a spouse or minor child. If the decedent owned a protected homestead and left it to someone other than the spouse in a way the law does not allow, the devise can be invalid.

The default rule under section 732.401 gives the surviving spouse a life estate in the homestead, with a remainder to the decedent’s descendants. But the statute also gives the spouse a critical option: within six months of the decedent’s death, the spouse may elect to take an undivided one-half tenant-in-common interest instead of the life estate. For many surviving spouses, that half-interest is far more useful than a life estate, because it can be sold. This six-month homestead election is separate from the elective share deadline, and it is easy to overlook.

Why homestead and the elective share are not the same conversation

Homestead protects a specific asset — the residence — from being devised away from the spouse. The elective share protects a percentage of the overall estate. A surviving spouse may need to act on both, on different clocks, and the choices interact. Coordinating them is where experienced counsel earns the fee, and it is genuinely difficult to do well from the kitchen table.

Exempt property and family allowance: smaller rights, real money

Two often-ignored statutory rights can put cash and property into a surviving spouse’s hands quickly, ahead of most creditors.

• Exempt property (section 732.402). The surviving spouse (or children, if no spouse) is entitled to certain household furniture and appliances up to a statutory value, two motor vehicles meeting the statute’s criteria, and qualified tuition program funds and certain teacher death benefits. These items pass free of creditor claims, but the spouse must file a petition to claim them — generally within four months after service of the notice of administration, or within forty days after termination of any proceeding contesting the will. Sleep on it and the property folds back into the general estate.
• Family allowance (section 732.403). The court may award a reasonable allowance — capped at $18,000 — out of the estate for the maintenance of the surviving spouse and lineal dependents during administration. It is meant to keep the household running while probate grinds on, and it is paid ahead of general creditor claims. There is no good reason to leave it on the table.

The pretermitted spouse: married after the will was signed

If your spouse signed a will before you married and never updated it, section 732.301 may treat you as a pretermitted spouse, entitling you to an intestate share — unless the will provided for the spouse, the omission appears intentional from the face of the will, or a valid marital agreement waived the right. This is a distinct claim from the elective share, and in second-marriage situations it frequently matters more. Surface it early, because it changes the entire administration strategy.

A practical sequence for the surviving spouse’s first 90 days

When a grieving client asks me what to actually do, I give them an order of operations rather than a lecture:

1. Secure the original will and the death certificate; confirm the will is deposited with the clerk within ten days.
2. Identify whether you were served with a formal notice of administration — that document starts several of your clocks running.
3. Have the homestead status of the residence determined immediately, and calendar the six-month homestead election.
4. Run the elective-share math and calendar the section 732.2135 deadline as your hard backstop.
5. File for exempt property and family allowance early — these are the fastest sources of relief.
6. If capacity, a prior marriage, or a contested guardianship clouds who may act, resolve that in parallel, not after the deadlines pass.

Because spousal rights cut across both lifetime planning and post-death administration, it is worth understanding how your own will and estate documents interact with these protections before a crisis, and to keep records organized so a survivor is not starting from zero. If you are already in administration, our Florida probate overview explains how the process unfolds step by step.

When the will is being contested — or should be

Sometimes the right move is not to elect against the will but to challenge it. Undue influence, lack of capacity, and improper execution are recognized grounds, and a will contest can interact with the elective-share and homestead timelines in complicated ways. The mechanics of contesting a will vary by state; our New York colleagues maintain a clear explainer on that illustrates the general framework, though Florida grounds and deadlines differ. For Florida-specific representation in administration and disputes, our Florida probate practice handles these matters directly.

The unifying theme is simple. Florida gives surviving spouses meaningful, layered protections — but nearly every one of them is conditioned on filing something, on time. A surviving spouse who acts deliberately in the first few months almost always preserves their options. The ones who wait are the ones who end up asking whether anything can be done. If you have recently lost a spouse, the prudent step is a short consultation to map your deadlines before any of them expire. Reach out while the clock still favors you.

Frequently Asked Questions

How long does a surviving spouse have to claim the elective share in Florida?

Under Florida Statutes section 732.2135, the election must be filed by the earlier of six months after the surviving spouse is served with the notice of administration, or two years after the decedent’s death. A court may extend the six-month period if a motion is filed before it expires, but no extension can reach past the two-year outer limit.

Can a surviving spouse be completely disinherited in Florida?

No, not entirely. Florida’s elective share statutes (sections 732.201-732.2155) give a surviving spouse the right to 30% of the elective estate regardless of what the will says, unless that right was validly waived in a prenuptial or postnuptial agreement. Homestead protections under the Florida Constitution and section 732.401 add a separate layer of protection for the marital residence.

What is the homestead election a surviving spouse can make?

Under section 732.401, the default is that the surviving spouse receives a life estate in the homestead with the remainder going to the decedent’s descendants. However, within six months of the decedent’s death, the spouse may instead elect to take an undivided one-half tenant-in-common interest, which is often more useful because it can be sold. This deadline is separate from the elective-share deadline.

Is the elective share always the best option for a surviving spouse?

Not necessarily. The elective share equals 30% of the elective estate. If the will already leaves the spouse more than that amount, electing against the will could actually reduce the inheritance. Deciding whether to elect is a financial calculation that should be run before the deadline, ideally with counsel who can value the full elective estate, including non-probate assets.

What quick relief is available to a surviving spouse during probate?

Two statutory rights provide fast relief ahead of most creditors: exempt property under section 732.402 (certain household furnishings, qualifying vehicles, and specified funds) and a family allowance of up to $18,000 under section 732.403 to support the household during administration. Both generally require timely petitions, so they should be filed early in the case.