Surviving Spouse in Florida Probate - Current Law

Posted on January 16, 2012 by Jeffrey Skatoff

Surviving Spouses in Florida receive certain entitlements in a Florida probate administration, including a minimum percentage of the estate (elective share), rights to a Florida homestead, support during the probate administration, and other benefits.

Marital Agreements (Prenuptial and Postnuptial Agreements)

·         MARITAL AGREEMENTS.  Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.  It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly any rights you may have at death or as a surviving spouse.   It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements.  Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements.

·         TIMELINE TO FILE A CREDITOR CLAIM.  If a surviving spouse of a Florida decedent has a Marital Agreement, it is imperative that his or her attorney file a protective creditor claim to preserve these contract rights of the surviving spouse, within the three months of the filing the Notice of Publication to Creditors or thirty days from the date of service of a known creditor, even if the surviving spouse is the personal representative.  A common mistake of probate lawyers in handling marital agreements is the failure to file such a creditor claim.  There is no harm in filing a protective claim, and often filing a protective creditor claim results in the payment of benefits to a surviving spouse which may otherwise be lost.  The Florida Supreme Court has even ruled that filing such a claim is necessary to enforce a surviving spouse’s right under a marital agreement. Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991).  The consequence of failing to timely file a creditor claim for a spouse with rights under a marital agreement can be severe, and a spouse may potentially lose all benefits of the marital agreement if the proper procedures are not followed.

Spouse Dies Without a Will (Intestacy)

·         INTESTATE.  If a person dies without a Will he or she is considered to die intestate.

·         INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.  (If a couple is separated at the time of death, the surviving spouse is not barred from inheriting).

·         SHARE OF SURVIVING SPOUSE - NO CHILDREN OR ALL CHILDREN OF SURVIVOR.  If the only survivor is a surviving spouse, or if all the lineal descendants are also lineal descendants of the surviving spouse, then the surviving spouse receives the entire estate of the decedent.  This rule applies only for spouses passing away on or after October 1, 2011.  Under prior Florida law, if the deceased spouse had children, the surviving spouse received only one-half of the estate, or one-half of the estate plus $60,000 if all of the children were of the marriage.

·         SHARE OF SURVIVING SPOUSE IF THERE ARE SURVIVING CHILDREN FROM DECEDENT BUT NOT OF THE SURVIVING SPOUSE.  If there are children of the decedent who are not children of the surviving spouse, then the surviving spouse receives one-half of the intestate estate. 

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Creditor Claims in Probate - Timing is Everything

Posted on December 27, 2009 by Jeffrey Skatoff

Creditor claims in probate are subject to two statutes of limitation within which a creditor claim must be filed with the probate court.  

The first creditor claim limitation period is the 30 day / three month rule, which requires that a claim be filed within the later of (i) 3 months after the first publication of the notice to creditors (which is filed in the local business newspaper or the paper of general circulation), or (ii) 30 days after the creditor is served with a copy of the notice to creditors.  

For creditors not directly receiving a copy of the notice to creditors, the 3 month rule is subject to a number of extensions that the probate court may grant, the primary one being that the creditor did not have sufficient notice of the claims period.  ("Reasonably ascertainable" creditors are supposed to be served with a copy of the notice to creditors.  Those that are not served and who were unaware of the running of the claims period will routinely petition the probate court for an extension.)

The second creditor claim period of limitation is the two year rule, which requires creditor claims to be brought within two years of death of the deceased.  This limitation period is not subject to extensions or exceptions. 

In Mack v. Perri (1st DCA 2009), the Court addressed these claim limitation periods as follows.  The Deceased died November 18, 2004.  The first notice to creditors was published May 14, 2005.  The creditor filed its claim on October 31, 2005.  

The Court held that the claim was barred by the three month rule, because the claim was not filed within three months of the publication of the notice to creditors.  The Court also held that the claim was barred by the two year rule, because, although the three month limitation has provisions for extensions, the claim and motion for an extension must be filed before the expiration of the two year limitation period.  

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