Marriage and Probate in the State of Florida

/ / Law Blog
estate planning attorney

Here at Crary Buchanan Attorneys at Law, we believe it is important for you to understand the laws and regulations concerning marriage and probate in the state of Florida.

When you get married, there are certain protections and benefits that come with your union. These include tax benefits and protection against creditors, for example. But there are also protections that relate to probate and estate planning when you wed in Florida.

Therefore, if one spouse passes away, the other will receive the decedent’s assets without having to go through a bunch of legal red tape. As the surviving spouse, you have enough to concern yourself with when you lose your other half. Thanks to these laws, the transfer of property is much easier when you’re married.

Let’s look into these laws further and discuss how they affect married couples in the state of Florida.

Benefits Under Florida Law

Homestead Devise

As we said before, according to Florida law, marriage brings many benefits. One of the benefits is to restrict the homestead property (your main residence) that may or may not be left to somebody in your will. Florida is very careful to ensure that homestead property is reserved for families as much as possible. 

For example, Florida Statute 732.4015 states that if your spouse or minor children are alive, you are prohibited from transferring homestead property through your will. According to the regulations, if there remains a surviving spouse and the decedent left a will that stated that they wanted their estate transferred to someone else, such a transfer would be denied. 

Tenancy by Entireties

According to the law, people can jointly own property in different ways. In Florida, when a married couple acquires property ownership equally, they are likely to be eligible to own the property as tenants by entireties.

When you own property this way, it comes with many benefits, including creditor protection benefits and additional estate planning benefits, because all ownership of the property implies the existence of the so-called “right of survivorship.” Therefore, the surviving spouse will have a share of the deceased spouse’s property.

Elective Share

Moreover, the law in Florida recognizes that some marriages may be stressful, or in some cases, spouses may wish to completely deprive their spouses of inheritance rights without an actual divorce. This is prohibited under Florida law, preventing someone from completely depriving their spouse of inheritance rights without the approval of the spouse who is deprived of inheritance rights. 

According to Florida Regulations 732.201 and 732.2065, the surviving spouse has the right to claim 30% of the deceased spouse’s estate. It’s important to note that this selective sharing right may be waived in something like a prenuptial agreement. So if you are concerned about being deprived of your inheritance rights by your spouse, it is helpful for you to have a dialogue with your estate planning attorney to provide you with the best advice on your rights.


In the state of Florida, divorce greatly affects estate planning. If there’s a provision in the decedent’s will that affects the spouse, it will become void if the couple gets divorced. Thus, an ex may not inherit their former spouse’s assets following their death. If you get divorced, it’s important that you make the appropriate changes to your will with your estate planning attorney.

Intestate Succession

If your spouse dies and you don’t have an estate plan in place, the surviving spouse typically has the right to inherit the entire estate of his spouse. However, in the case of mixed families, the situation is different. For example, a couple both gave birth to children from a previous relationship. In such a scenario, Florida law dictates that half goes to the spouse and the other half is divided among the children. To ensure that your assets go exactly where you want them to, be sure to schedule an appointment with an estate planning attorney to discuss your options.

When you secure the services of Crary Buchanan, you can be sure that your property and assets are well protected and that you’ve taken the appropriate actions to make the transfer of property easier when you pass.

Contact Crary Buchanan Attorneys at Law Today

Crary Buchanan is a general practice law firm dedicated to providing expert legal services in the state of Florida. Our lawyers have significant legal expertise in virtually every major area of law, and most of our associates are Board Certified by the Florida Bar in their respective areas of proficiency. 

This extensive legal experience, coupled with our many years of service and dedication in the community, enables our lawyers to provide comprehensive representation to our clients. So if you need a knowledgeable estate planning attorney, please call or contact the law office of Crary Buchanan today. We proudly serve Stuart and the surrounding areas and are here to assist you with your legal concerns. 

The information in this blog post is for reference only and not legal advice. As such, you should not decide whether to contact a lawyer based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.