815 Orienta Ave. Suite 1030 Altamonte Springs, FL 32701
815 Orienta Ave. Suite 1030 Altamonte Springs, FL 32701
Estate planning is one of those tasks that feels easy to push to the bottom of the to-do list. We get it—nobody wants to spend their Saturday afternoon thinking about what happens after they are gone. But if you own a home in Dr. Phillips or are raising a family in Winter Park, understanding who gets what is essential to protecting the people you love.
In Florida, inheritance laws are not always as clear-cut as "everything goes to my spouse." The rules change depending on whether you have a valid will, if you have children from a previous relationship, or if the property is considered a "homestead."
Many folks assume the surviving spouse automatically holds all the cards, but that isn't always true. Navigating these statutes can be tricky, which is why finding a reputable family law practice in Orlando Florida is the first step toward clarity. Whether you're happily married, separated, or looking for a divorce attorney to help untangle assets, knowing your rights prevents messy surprises later.
If a resident dies without a valid will, they are considered "intestate." When this happens, the state of Florida steps in with a default plan to distribute assets. This default plan prioritizes the immediate family, but the specific percentages might shock you.
If you're married and have children only with your current spouse—and your spouse has no other children—the surviving spouse generally inherits 100% of the intestate estate. In this "nuclear family" scenario, the law assumes the surviving parent will take care of the children.
Things get complicated for blended families. If the deceased person had children from a prior relationship, the surviving spouse does not get everything. Instead, the spouse receives 50% of the estate, and the remaining 50% is divided among the deceased's children.
This creates potential friction. Imagine a scenario where a second wife in Altamonte Springs has to split her husband’s savings with his adult children from a first marriage. Without a will clarifying your wishes, the state’s cookie-cutter math takes over.
Florida law is very protective of surviving spouses. Even if a will tries to cut them out completely, the law has safety nets to ensure a widow or widower isn't left destitute.
One of the most powerful tools for a spouse is the "elective share." Under Florida Statute 732.2065, a surviving spouse has the right to claim 30% of the deceased spouse's "elective estate." This applies even if the will says they get nothing.
The elective estate is broad—it includes probate assets, accounts with "pay on death" designations, and even certain property transferred right before death.
For more details on how this percentage is calculated under state law, you can review the Florida Statutes on the elective share.
For many families living anywhere from Sanford to Lake Nona, the primary residence is their biggest asset. Florida protects the "homestead" fiercely. If the specific home is owned solely by the deceased but was their primary residence, strict rules apply:
In addition to inheritance, a surviving spouse (and dependent children) may be entitled to a "family allowance." This provides up to $18,000 in cash from the estate to support the family during the probate process.
While spouses have statutory protections like the elective share, adult children generally have fewer rights. In Florida, you can legally disinherit an adult child in your will. However, if there is no will, the children are next in line after the spouse.
This distinction is crucial for step-parents. You might raise a stepchild for 20 years in your Oviedo home, but if you don't adopt them or name them in a will, they are entitled to nothing under Florida intestacy laws.
A "pretermitted child" is one born or adopted after the will was written. Florida law assumes you didn't mean to forget them. These children are usually entitled to the share they would have received if there had been no will at all.
Inheritance fights can tear families apart faster than almost anything else. We see it often: a step-mother and adult step-children fighting over a vacation condo in New Smyrna Beach or a savings account.
When emotions run high, litigation isn't the only answer. Many families find success using collaborative law. This process allows all parties to work together with their attorneys to find a solution that honors the deceased’s legacy without draining the estate’s funds on a courtroom battle.
The "Estranged" Spouse
A couple has been separated for ten years but never legally divorced. The husband passes away. Even though they haven't spoken in a decade, the wife is still the legal spouse. She is entitled to her 30% elective share, homestead rights, and potentially the whole estate if there are no children. This often leaves the deceased’s siblings or parents with nothing.
The Unmarried Partner
A couple lives together in Baldwin Park for 25 years but never gets a marriage license. If one partner dies without a will, the surviving partner has no inheritance rights under Florida law. The assets would likely go to the deceased's children or distant relatives.
Trying to figure out who gets the house or the 401(k) on your own is a recipe for disaster. Florida probate and family codes are dense, and small mistakes in filing dates can cost you your inheritance.
A skilled family law practice in Orlando Florida can look at your specific family dynamic—step-kids, ex-spouses, homestead properties—and tell you exactly where you stand. If you're the one planning your estate, a lawyer ensures your assets go exactly where you want them to, protecting your children and spouse from fighting later.
At the end of the day, having a clear plan is the best gift you can leave your family. Whether you're a spouse worrying about your future security or a child concerned about a parent's estate, knowing your legal standing changes everything.
Don't wait until a crisis hits to ask hard questions. If you need help navigating inheritance rights, divorce, or estate planning, we are here to guide you with compassion and expertise.
Contact Frank Family Law Practice today at (407) 629-2208 to schedule a consultation.