When a person dies in Florida without a will, the surviving spouse usually has the strongest legal claim to the estate and the most urgent reasons to act. Under Florida’s intestacy statutes, a surviving spouse may inherit the entire probate estate or share it with the decedent’s children, but several of the spouse’s most valuable rights are protected only if they are asserted within strict deadlines. In short: a Florida surviving spouse must act promptly to open the estate, preserve the homestead, and elect or waive certain benefits before those windows close.
I’ve spent years walking Palm Beach families through exactly this moment, and the pattern repeats itself. The grief is fresh, the paperwork is overwhelming, and a quiet clock is already running. This article lays out what the surviving spouse needs to know, and more importantly, when action is required, in an estate where there is no will.
What “No Will” Means for a Florida Surviving Spouse
When someone dies without a valid will, they die intestate, and Florida law writes the will for them through Chapter 732 of the Florida Statutes. The surviving spouse’s share is fixed by Florida Statute 732.102, and it is not always 100 percent of the estate, which surprises many people.
- No descendants: The surviving spouse inherits the entire intestate estate.
- All descendants are also the spouse’s children: The spouse still takes the entire intestate estate.
- The decedent had children from another relationship: The surviving spouse takes one-half, and the decedent’s descendants take the other half.
- The spouse has children from another relationship (but the decedent does not): The spouse again takes one-half, with the balance passing to the decedent’s descendants.
That blended-family rule is the one that catches people off guard. A spouse who assumed they would inherit everything may instead be sharing the estate with stepchildren, and decisions about the home and other assets suddenly involve other interested parties. This is precisely why early legal advice matters in a no-will estate.
Probate vs. non-probate assets
Not everything passes through probate. Jointly titled real estate with rights of survivorship, payable-on-death accounts, life insurance with a named beneficiary, and assets in a trust generally bypass the probate process entirely. Intestacy only governs the assets that were titled in the decedent’s sole name with no beneficiary designation. One of the first jobs is sorting which bucket each asset falls into, because that determines whether a deadline even applies.
The First Clock: Opening the Estate and the Two-Year Creditor Bar
Florida does not impose a single hard deadline to start probate, but several practical and legal pressures make delay costly. The most important is the absolute creditor deadline in Florida Statute 733.710: two years from the date of death, after which most creditor claims are forever barred.
Here’s the tension. Many surviving spouses wait, hoping to avoid the expense of probate. But waiting can backfire. If the estate is never opened and formal notice to creditors is never published, the shorter claims windows under Florida Statute 733.702 never start running. Publishing a notice to creditors triggers a three-month window for unknown creditors to file claims; known or reasonably ascertainable creditors must be served directly and get the later of three months from publication or 30 days from service.
For a surviving spouse, the takeaway is straightforward: opening the estate is what starts the clock that ultimately protects the estate’s assets. The two-year bar in 733.710 runs regardless, but the faster, cleaner cutoffs only begin once a personal representative is appointed and notice goes out. Probate, far from being the enemy, is often the tool that shields the spouse from stale debts.
The Homestead Election: A Deadline That Can Cost You the House
For most Palm Beach families, the home is the single largest asset, and Florida’s homestead rules are unforgiving about timing. When a decedent is survived by a spouse and one or more descendants, the spouse does not automatically own the home outright under the default rule. Instead, the spouse receives a life estate, with a vested remainder passing to the decedent’s descendants.
A life estate sounds reasonable until you live it. The spouse holding a life estate is typically responsible for taxes, insurance, and upkeep, cannot sell or mortgage the property without the remaindermen’s cooperation, and shares the asset with children who may have very different plans.
That is why Florida gives the spouse a choice. Under Florida Statute 732.401, the surviving spouse may elect, instead of the life estate, to take an undivided one-half interest in the homestead as a tenant in common, with the descendants taking the other half. This single decision can dramatically change the spouse’s ability to sell, refinance, or move.
The deadline is the catch. The election must be made within six months after the decedent’s death, and it must be filed in the probate proceeding. Miss that window and the default life estate locks in. I have seen well-meaning spouses lose this option simply because no one told them the clock existed. The arithmetic of which option is better, life estate or one-half tenancy in common, depends on the home’s value, the spouse’s age and health, family dynamics, and long-term housing plans. It deserves a real conversation with counsel, not a guess.
Family Allowance and Exempt Property: Money the Spouse Can Get Quickly
Probate can take many months, and bills do not pause for grief. Florida law builds in immediate relief for the surviving spouse, but these benefits are not automatic and several must be claimed within deadlines.
- Family allowance (Florida Statute 732.403): The court may award up to $18,000 to the surviving spouse and certain dependents to support them during administration. It can be paid as a lump sum or in installments and is in addition to other benefits.
- Exempt property (Florida Statute 732.402): The spouse is entitled to certain household furnishings and appliances up to a statutory value, plus two motor vehicles used regularly by the family. Critically, the right to exempt property is lost if a petition to determine exempt property is not filed within four months after service of the notice of administration (or within 40 days after the end of any contest of the will, where applicable).
- Exempt assets: Qualified tuition and certain death benefits may also be protected from creditor claims.
The four-month exempt-property deadline is one of the most commonly missed in Florida probate. It is short, it runs from service of the notice of administration rather than from death, and there is no informal grace for “I didn’t know.” A surviving spouse who wants the car and the furnishings protected from creditors needs to move early.
The Elective Share: Usually for Wills, but Worth Understanding
The elective share gives a surviving spouse the right to claim 30 percent of the decedent’s “elective estate” under Florida Statute 732.2065, even if a will tried to leave them less. In a pure intestate estate, the spouse’s intestate share is often already as generous or more generous than the elective share, so the election is less commonly used. But it remains relevant when a decedent moved assets into trusts, joint accounts, or other arrangements during life that shrank the probate estate.
The elective share has its own firm deadline: the election must be filed within the earlier of six months after service of the notice of administration or two years after the date of death. Because the elective estate reaches beyond probate assets to certain trusts and transfers, evaluating whether to elect requires a careful, asset-by-asset analysis. This is not a do-it-yourself calculation.
Who Serves as Personal Representative?
In an intestate estate, Florida law gives the surviving spouse first priority to serve as personal representative (the executor, in everyday language) under Florida Statute 733.301. If the spouse does not wish to serve, the person selected by a majority of the heirs comes next.
Serving as personal representative is both a right and a responsibility. The PR gathers and inventories assets, gives notice to creditors, pays valid debts in the statutory order of priority, files tax returns, and distributes what remains. A Florida personal representative who is not a resident or close relative generally must be represented by a Florida attorney, and in nearly all formal administrations legal counsel is required regardless. For a grieving spouse, having an attorney handle the procedural machinery is often the difference between a clean administration and a contested one. These are the same friction points that complicate estates everywhere, the kind of that experienced counsel anticipates and heads off.
A Practical Timeline for the Surviving Spouse
Every estate is different, but here is the rhythm of deadlines a Palm Beach surviving spouse should keep in view in a no-will estate:
- Right away: Secure the home and assets, locate account and titling information, and consult a probate attorney to confirm what is and is not subject to probate.
- Within the first weeks: Petition to open the estate and have a personal representative appointed so the creditor process can begin.
- Four months from service of notice of administration: File to determine exempt property, or lose it.
- Six months from death: Make the homestead election (life estate vs. one-half tenancy in common).
- Earlier of six months from notice or two years from death: File any elective share claim.
- Two years from death: The absolute creditor bar under 733.710.
If those dates feel like a lot to track while you are also planning a funeral and notifying family, that is exactly the point. They are not designed for laypeople to manage alone.
Why Counsel Matters in a No-Will Estate
Intestate estates are, paradoxically, often harder than estates with a will. There is no document expressing the decedent’s wishes, no nominated executor, and frequently no clear inventory of assets. When stepchildren or estranged relatives are in the picture, default statutory shares can produce results the spouse never expected, and conflicts surface quickly.
Our firm helps surviving spouses across Palm Beach and South Florida open estates, hit every statutory deadline, and protect the homestead and family allowances they are entitled to. If part of the estate, or your family, reaches into New York, we coordinate directly with Morgan Legal’s team on , so a multi-state estate is handled as one seamless matter. For Florida-specific guidance, you can also learn more about our .
If you have recently lost a spouse and there is no will, do not wait for a deadline to find you. To understand how a will could have changed any of this, see our overview of wills, learn more about the Florida probate process, or contact our Palm Beach office to talk through your situation.
Frequently Asked Questions
Does the surviving spouse automatically inherit everything in Florida if there is no will?
Not always. The spouse inherits the entire intestate estate only if there are no descendants, or if all of the decedent’s descendants are also the spouse’s children. If the decedent or the spouse has children from another relationship, the spouse takes one-half and the descendants take the other half under Florida Statute 732.102.
What is the deadline for the homestead election in Florida?
A surviving spouse who would otherwise receive a life estate may elect a one-half tenancy-in-common interest instead, but the election must be made and filed within six months after the decedent’s death. If the deadline passes, the default life estate applies and cannot be changed.
How much is the Florida family allowance for a surviving spouse?
Under Florida Statute 732.403, the court may award a family allowance of up to $18,000 to support the surviving spouse and certain dependents during administration. It may be paid in a lump sum or in installments and is in addition to other benefits the spouse receives.
Can creditors still come after the estate years later?
Florida Statute 733.710 imposes an absolute two-year bar from the date of death, after which most creditor claims are extinguished. Opening the estate and publishing a notice to creditors can trigger much shorter windows, often three months for unknown creditors, which is why prompt administration protects the spouse.
Should the surviving spouse serve as personal representative?
The surviving spouse has first priority to serve as personal representative in an intestate Florida estate. Whether to do so depends on the estate’s complexity and family dynamics; many spouses serve while retaining a probate attorney to handle filings, notices, and creditor priorities.
Frequently Asked Questions
Does the surviving spouse automatically inherit everything in Florida if there is no will?
Not always. The spouse inherits the entire intestate estate only if there are no descendants, or if all of the decedent’s descendants are also the spouse’s children. If the decedent or the spouse has children from another relationship, the spouse takes one-half and the descendants take the other half under Florida Statute 732.102.
What is the deadline for the homestead election in Florida?
A surviving spouse who would otherwise receive a life estate may elect a one-half tenancy-in-common interest instead, but the election must be made and filed within six months after the decedent’s death. If the deadline passes, the default life estate applies and cannot be changed.
How much is the Florida family allowance for a surviving spouse?
Under Florida Statute 732.403, the court may award a family allowance of up to $18,000 to support the surviving spouse and certain dependents during administration. It may be paid in a lump sum or in installments and is in addition to other benefits the spouse receives.
Can creditors still come after the estate years later?
Florida Statute 733.710 imposes an absolute two-year bar from the date of death, after which most creditor claims are extinguished. Opening the estate and publishing a notice to creditors can trigger much shorter windows, often three months for unknown creditors, which is why prompt administration protects the spouse.
Should the surviving spouse serve as personal representative?
The surviving spouse has first priority to serve as personal representative in an intestate Florida estate. Whether to do so depends on the estate’s complexity and family dynamics; many spouses serve while retaining a probate attorney to handle filings, notices, and creditor priorities.
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For more on our Florida practice, see our overview of probate and estate administration in Florida. Morgan Legal Group's affiliated New York office also handles .
