‘Till Death Do Us Part | Part 2

The Surviving Spouse’s Rights in the Deceased Spouse’s Estate (Part 2 of 2)

Forrest J. Bass
Forrest practices in the areas of wills, estate planning, probate and trust administration.

This second installment of a two-part newsletter discusses the rights to elective share, exempt property, family allowance, preference in appointment as personal representative, and other rights.

Elective Share
If the decedent had an estate plan, but did not make adequate provision for the surviving spouse, the surviving spouse can make a claim for the elective share, which is equal to 30% of the “elective estate.” The elective estate consists of any assets in the decedent’s individual name, any trust assets, any joint accounts, any assets which had named beneficiaries, and certain transfers made within one year of death. The elective share is a value equal to 30% of the total elective estate, but does not give the spouse a 30% interest in each asset. Rather, it is more likely that the spouse will receive a distribution of specific assets (perhaps cash) equivalent in value to the 30% of the elective estate. The time for filing the election is within six months from the date of service of the notice of administration (which is usually served on the surviving spouse when the estate is opened). In some cases, third parties who received assets from the decedent may be required to contribute to the distribution to the surviving spouse, even if they received an asset through some non-probate means such as a pay-on-death account.

Exempt Property
The surviving spouse is also entitled to up to $20,000 in tangible personal property located in the decedent’s home and two automobiles that were regularly used by the decedent as exempt property. Although the spouse is given great latitude in selecting items to claim, property that has been specifically given to someone in the decedent’s estate plan may not be claimed as exempt by the surviving spouse. The time for seeking a claim for property is within four months from the date of service of notice of administration (which is typically served at the beginning of the probate proceeding).

Family Allowance
If the decedent was supporting the surviving spouse while the decedent was alive, the surviving spouse may be entitled to a family allowance for the spouse’s maintenance during the probate administration. The court may grant an allowance up to $18,000 to be paid in a lump sum or in periodic installments.

Preference in Appointment as Executor
If the decedent had a will, no doubt that it will nominate a personal representative (commonly referred to as the “executor”). However, if there was no will or the personal representative nomination was ineffective, the surviving spouse is given the first choice in naming a personal representative of the estate. Further, as the surviving spouse, she or he is qualified to serve regardless of residency (Florida’s law says that a personal representative must be a Florida resident, blood relative, or married to a blood relative).

Other Points of Interest

• The spouse has the right to control disposition of the decedent’s remains (including cremation decision).
• The spouse is entitled to $255 death benefit from the Social Security Administration and social security payments may be affected.
• The spouse is entitled to an additional $500 in homestead exemption for real property tax purposes.
• The spouse may have the ability to capture the decedent’s unused estate tax exemption.

In summary, navigating through the myriad of rights and decisions available to a surviving spouse can be a daunting challenge. Working with a qualified estate and trust attorney to guide you through the process can give you peace of mind in a difficult time.