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Is Probate Still Required if There is a Surviving Spouse?

The determination of certain property rights is an important issue following the death of a spouse. Fortunately, in Florida, surviving spouses have many property rights. For example, pursuant to the Florida probate code, a surviving spouse may be entitled to some or all of a deceased spouse’s estate, including: 

  • Homestead property
  • Family allowance
  • Elective share of any cash and investments
  • Pretermitted spousal share of the estate
  • The intestate share of the probate estate
  • Exempt property

A spouse in Florida may inherit some types of property without going through probate. However, as discussed below, probate may still be required for a surviving spouse depending on the type of property. In this article, we examine whether probate is still required if there is a surviving spouse. 

What is Probate?

Probate is the process by which the probate court distributes the assets of a deceased person. During probate, the court assigns a personal representative to carry out the terms of a person’s will. Typically, this person is named in the will document. Unfortunately, the probate process can be lengthy and complicated. Therefore, it is advisable to seek the assistance of an experienced Florida probate lawyer when navigating the probate process. 

Probate and a Surviving Spouse

Whether probate is required for a surviving spouse depends on how certain property is owned. Generally, married couples own property jointly. In this situation, when one spouse passes away, the property will go to the remaining spouse without the need for probate. However, if a married person is the sole owner of an asset, such as a home, piece of land, or property, then that real estate must go through the probate process before inheritance may occur. And in this situation, i.e., when a married couple does not own a piece of property jointly, the probate court adheres to Florida’s state intestacy laws. Under this system, there is a possibility that the surviving spouse may not inherit the property in its entirety. In other words, it is possible in this situation that other family members may be entitled to a fraction of the property in question. Therefore, as a surviving spouse in this situation, it’s important to seek the assistance of an experienced Florida estate administration lawyer. 

The Bottom Line

Whether probate is required for a surviving spouse is a complicated legal question that is dependent upon the type of property. Therefore, if you are a surviving spouse, you should contact an experienced estate administration attorney for guidance regarding your property rights and the need for probate. 

Contact a Florida Probate Lawyer 

If you have recently lost a spouse, the Law Office of Angela Siegel can help ensure that you obtain the assets that are owed to you under Florida law. When you come to us for assistance with your legal issue, experienced probate lawyer Angela Siegel will work with you to determine your inheritance rights following the death of your loved one. Please contact us to schedule a meeting with our experienced Florida probate lawyer