In Florida probate, a surviving spouse has several rights that must be claimed by firm statutory deadlines, not granted automatically. The two that most often catch people off guard are the elective share, which must generally be elected within six months of being served the notice of administration (or two years after death, whichever comes first), and the homestead election under Section 732.401, which must be made within six months of death. Miss those windows, and rights that were worth real money, sometimes the family home itself, can quietly evaporate.
I have sat across the table from too many widows and widowers who assumed that because they were married, the law would simply take care of them. It usually does take care of them, but only if they act. Probate in Florida is a deadline-driven process, and for a surviving spouse those deadlines arrive faster than grief allows you to think clearly. This article walks through the moments when a Florida surviving spouse genuinely must do something, with particular attention to estates where the most valuable asset is real property.
Why the Surviving Spouse’s Clock Starts With the Notice of Administration
When a probate is opened in Florida, the personal representative serves a document called the notice of administration on interested persons, including the surviving spouse. That piece of paper is not a formality. It is the starting gun for almost every protective right a spouse has.
Under Florida Statutes Section 733.212, once you are served with the notice of administration, you have three months to file objections that challenge the validity of the will, the venue of the proceeding, or the jurisdiction of the court. Three months. After that, those challenges are generally barred. If a spouse suspects the will was signed under undue influence, or that a newer will was suppressed, or that the document offered for probate is not the real one, this is the window. There is no do-over once the clock runs.
So the first thing a surviving spouse must do is simple to say and hard to do while mourning: read the notice, write down the date you were served, and treat that date as sacred.
What the Notice Actually Triggers
- Three months to object to the will’s validity, venue, or jurisdiction (Section 733.212).
- Six months from service to elect the elective share, unless two years from death comes first (Section 732.2135).
- A running clock on creditor and accounting issues that a spouse may also need to monitor.
The Elective Share: Florida’s Anti-Disinheritance Rule
Florida does not let a married person fully disinherit a spouse by will. That is the purpose of the elective share. Under Section 732.2065, a surviving spouse may elect to receive 30 percent of the “elective estate,” a figure that is broader than the probate estate. It can reach into revocable trust assets, certain jointly held property, pay-on-death accounts, and other transfers the decedent thought were safely outside probate.
This matters enormously in real-property-heavy estates. Imagine a South Florida couple where the husband, in a second marriage, left a condo, a rental duplex, and a brokerage account entirely to his children from a first marriage, leaving his wife a token gift. The elective estate analysis pulls those holdings together and gives the wife a claim against 30 percent of the combined value. Without the election, she may get only what the will scraps her.
The catch is timing. Under Section 732.2135, the election must be filed on or before the earlier of six months after the surviving spouse is served the notice of administration, or two years after the decedent’s death. A spouse who waits, hoping the family will work it out informally, can wake up on month seven with nothing to elect.
Should You Elect? It Is Not Always Obvious
The elective share is a right, not an obligation, and electing is not always the smart move. If the will already leaves the spouse more than 30 percent of the elective estate, the election does nothing. If the assets are illiquid, say, a duplex that cannot easily be sold, taking 30 percent may force a property sale that fractures the family. This is genuinely a calculation, and it is one of the few places in probate where I tell clients to run the numbers before they sign anything. New York handles spousal protection through a comparable but distinct right of election; if your family has assets in more than one state, it is worth understanding how a treats a surviving spouse, because the percentages, deadlines, and the reach into non-probate assets differ from Florida’s.
Homestead: The Right Built Around the Florida Home
Nothing in Florida probate is more tangled, or more important to a surviving spouse, than homestead. The Florida Constitution protects the homestead from most creditors and restricts how it can be devised when there is a surviving spouse or minor child. For estates where the home is the main asset, this is the whole ballgame.
Here is the default rule under Section 732.401. If the decedent is survived by a spouse and by descendants, and the homestead was not validly devised, the surviving spouse takes a life estate in the home, with a vested remainder going to the descendants. A life estate sounds generous, but it carries burdens: the life tenant typically pays property taxes, insurance, and ordinary maintenance, while the remaindermen, often stepchildren, hold the eventual ownership. In a strained blended family, that arrangement can become a slow-motion conflict.
The Six-Month Homestead Election
Recognizing how unworkable a life estate can be, Florida gives the surviving spouse an alternative. Instead of the life estate, the spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the descendants taking the other half. That converts a lifetime-of-shared-headaches arrangement into clean co-ownership.
But, again, the deadline. Under Section 732.401, this election must be made within six months after the decedent’s death and during the surviving spouse’s lifetime, and it is made by filing a notice of election for recording in the county where the property sits. Once made, it is irrevocable. Six months from death, not from notice, which means this clock can run even faster than the elective share clock.
Whether the life estate or the one-half tenancy in common is better depends on the family, the property, and the math. The life estate keeps the spouse in sole possession for life. The tenancy in common gives the spouse a transferable, sellable ownership stake but invites the descendants in as co-owners immediately. There is no universally right answer, which is exactly why this decision should not be made by guessing.
A Practical Sequence for the First Six Months
When a surviving spouse comes to me shortly after a death, I walk them through a sequence rather than a pile of legal terms. Roughly, it looks like this:
- Locate and date every legal notice. The notice of administration date drives the elective share and objection deadlines.
- Confirm the date of death in writing. The homestead election runs from death, not from notice.
- Inventory the real property. Determine which parcel is homestead, how title was held, and whether it was jointly owned with survivorship (which usually passes outside probate entirely).
- Map the non-probate assets. Trusts, POD accounts, and joint accounts feed the elective estate calculation.
- Decide on the homestead election before month six. Life estate or one-half tenancy in common.
- Decide on the elective share before the earlier deadline. Six months from notice or two years from death.
- Preserve objection rights. If the will looks wrong, the three-month window from Section 733.212 is unforgiving.
Not every spouse needs to take every step. A surviving spouse who inherited everything under a clear will, with the home held jointly, may have nothing to elect and nothing to fight. The point is to know which boxes apply before the deadlines close them.
How Title and Property Type Change the Analysis
Because this firm focuses on real-property-heavy estates, it is worth being concrete about how the form of ownership reshapes a spouse’s choices. A home held by spouses as tenants by the entireties passes automatically to the survivor and never enters probate; no homestead election is needed because there is nothing to elect against. A home titled solely in the decedent’s name, by contrast, falls squarely into the homestead analysis and the six-month election. Rental and investment properties are not protected homestead at all, but they are very much part of the elective estate, which is often where the 30 percent claim finds its value.
Florida also recognizes more than one path through probate, and the path affects how quickly a spouse must move. Smaller estates may qualify for summary administration; larger or contested ones go through formal administration with a personal representative and the full notice machinery. The structural choices resemble what other states offer, and reviewing how work elsewhere can clarify why Florida’s deadlines attach when they do. For a Florida-specific overview of the process, our lays out the steps in plain language.
Common Mistakes Surviving Spouses Make
- Assuming the will controls the home. Florida’s homestead rules can override a contrary devise, sometimes invalidating a gift of the house to someone other than the spouse.
- Waiting for family consensus. Deadlines do not pause while relatives negotiate.
- Confusing the two six-month clocks. The elective share runs from notice; the homestead election runs from death. They are not the same date.
- Electing the share without running the numbers. Sometimes 30 percent of the elective estate is less than the will already provides.
- Letting the objection window lapse. Three months is short, and undue-influence claims die quietly at that mark.
If you are early in this process, two things help more than anything else: organize your dates and review your own planning documents so the next generation is not in the same position. If you have not revisited your estate plan since your spouse’s passing, our pages on wills and estate planning and the broader Florida probate process are a sensible next read.
The Bottom Line
A surviving spouse in Florida is well protected, but the protection is opt-in and time-limited. The elective share, the homestead election, and the right to object to a questionable will are all rights you must claim, in writing, by specific dates, or lose. In estates built around real property, those choices determine whether you keep your home, share it, or watch it be sold out from under you. The deadlines are not negotiable, but the outcome usually is, if you act in time. If you are unsure which clocks are running in your situation, speak with a Florida probate attorney before the first one expires.
This article is general information about Florida law and is not legal advice. Probate outcomes depend on specific facts; consult a licensed Florida attorney about your situation.
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 on or before the earlier of six months after the surviving spouse is served the notice of administration, or two years after the decedent’s death. The elective share itself equals 30 percent of the elective estate under Section 732.2065.
What happens to the Florida homestead when a spouse dies leaving a spouse and children?
Under Section 732.401, if the home was not validly devised, the surviving spouse takes a life estate with the descendants holding a vested remainder. Alternatively, the spouse may elect to take an undivided one-half interest as a tenant in common, but that election must be made within six months of death and is irrevocable.
Can a surviving spouse contest the will in Florida, and how long do they have?
Yes. Under Section 733.212, an interested person served with the notice of administration must file any objection challenging the will’s validity, venue, or jurisdiction within three months of service. After that window closes, those challenges are generally barred.
Does a jointly owned Florida home have to go through probate?
Usually not. A home held by spouses as tenants by the entireties passes automatically to the surviving spouse and does not enter probate, so no homestead election is needed. A home titled solely in the decedent’s name does fall into the probate and homestead analysis.
Is electing the 30 percent elective share always the right move?
No. If the will already leaves the spouse more than 30 percent of the elective estate, the election gains nothing. If the assets are illiquid, such as real property that cannot be easily sold, electing may force a sale. It is a calculation worth running with an attorney before the deadline.
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