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Daytona Beach Lawyers > Blog > Probate & Guardianships > What Rights Do You Have If Your Spouse Passes Away?

What Rights Do You Have If Your Spouse Passes Away?


Contrary to what many people think, a will alone is not enough to avoid the probate process. Probate is a process that administers a decedent’s estate and distributes assets to the beneficiaries after a person passes away. When an estate has to pass through probate, the surviving spouse of the decedent is given many rights under state law.  If you have lost your spouse, it is important to understand these rights so you can exercise them. Below, our Daytona Beach probate lawyer explains what they are.

Your Rights if Your Spouse Died Intestate 

When a person passes away without a will in place, they are said to have died intestate. If your spouse died intestate, you have a right to 50 percent of 100 percent of their estate, depending on if you had children together. The manner in which their estate is divided is as follows:

  • If you and your spouse are both the biological parents of children you share, you will receive your spouse’s entire estate.
  • If your spouse had a child from a previous relationship and you are not the biological parent, you will receive half of your spouse’s estate.
  • If you and your spouse are both the biological parents of more than one child, but you are the parent of a child you did not share with your spouse, you will receive half of the estate.

If your spouse drafted a will before you were married, you have the same rights you would if your spouse had passed away without a will. Still, there are some exceptions to this.

Factors that Can Affect Your Spousal Rights 

Although you do have many rights as a surviving spouse, there are certain factors that can impact them. These include:

  • You and your spouse had a premarital or postnuptial agreement that waived your right to the family home or other assets.
  • Your spouse’s will outlined specific property that was left to you.
  • Your spouse’s will specifically states that you should not receive any of their property after their death.

It is also important to understand that state law in Florida makes it very challenging to disinherit a spouse. Unless there was a premarital or postnuptial agreement in place, you still likely have a right to an elective share. You have rights to the elective share even if the estate is not subject to probate.

The elective share is equivalent to 30 percent of your spouse’s estate. This property can include revocable trusts, life insurance policies, pay-on-death accounts, and more. You must receive the elective share within two years of your spouse’s death or within six months of receiving notice of administration of the estate.

Our Probate Lawyer in Daytona Beach Can Help You Exercise Your Rights 

While the above laws are a general overview of your rights, the matter can become complicated, particularly when you are dealing with it during a time of grief. At Bundza & Rodriguez, our Daytona Beach probate lawyer can explain the law as it applies to your case and make sure your rights are upheld. Call us now at 386-252-5170 or contact us online to schedule a free consultation and to get the legal advice you need.



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