Florida Elder Law & Estate Planning Blog

What Is my spouse entitled to inherit?

Joseph S. Karp

When people come in to do their estate plan with us, one of the questions they ask quite frequently is, What do I have to leave my spouse, if anything? First of all, there are laws that say you have to leave something to your spouse, unless there is a pre- or post-nuptial agreement. So if you want to restrict what you’re leaving your spouse, that must be entered into and the terms reached. If not, under Florida law your spouse is entitled to 30% of what’s known as an “augmented estate.” It means all of the assets that you had when you died. Some of the assets are your bank accounts, your brokerage accounts, your home and other properties. In addition, there’s a special Homestead Right that your spouse has if you happen to own your homestead alone. Your spouse is entitled to either 50% of the proceeds of the house, so they can force the sale and get 50% of it; or they are entitled to live there for the rest of their life – at their expense, but they are entitled to do that. These are issues that should be addressed with a lawyer, in advance. When we’re meeting with a married couple, we have to make sure that they understand that both of them have these rights, and they may need separate lawyers to work out their issues.