Surviving Spouse’s Rights In A Florida Probate

Posted By on December 24, 2015

When a husband or wife passes away in Florida, they have specific legal rights that are different from other loved ones who are grieving over the passing of the decedent. As the widow or widower, they are considered under Florida probate law to be the “surviving spouse” with special legal rights regarding property and the decedent’s estate.

 

Two golden wedding rings

 

1. Is Florida A “Community Property” State?

Generally speaking, Florida is not a community property state.  However, Florida does recognize the property rights of a married person when either the husband or wife passes away as a form of “community property” if, for example, the property, wherever located, was acquired as, or became and remained, community property under the laws of another jurisdiction. (see Florida Statute 732.217)

Community property has to be specifically defined as protected property under the law or it will not be included. Florida law must define it as “community” and if it’s not defined, then it is considered separate property of the decedent. Separate property of the decedent is overseen and distributed by the Personal Representative in accordance with the Will and the Florida Probate Code.

Community property isn’t part of the probate at all. It’s owned by the widow or widower.

For instance, under Florida law anything owned by the husband or wife before they got married is not part of the community property unless they take steps to make it so. That property (land, boats, jewelry, etc.) is their separate property and just because they got married, their spouse doesn’t get any ownership interest.

However, any property that either spouse acquires while they are married to each other is community property. It can be real property (land) or it can be any kind of personal property (furniture, pets, cars, etc.). An exception here: gifts or inheritances aren’t considered community property in Florida.

  • Life insurance and profit-sharing plans? They can be community property as long as the benefits are originally acquired while the individual resides in a community property state.
  • Property that has a land title in the deceased spouse’s name only? If the other requirements of community property are met, then the surviving spouse has an interest in it as community property. It won’t matter that their name isn’t on the title deed.
  • Moved to a state that doesn’t have community property laws? Florida law provides that just changing your domicile doesn’t change the nature of the Florida property interest from community property. See Florida Statutes 732.217, 732.218.

2. Florida Community Property Rights at Death Act

The Florida Legislature has passed the Florida Uniform Disposition of Community Property Rights at Death Act (Florida Statutes 732.216 – 732. 228) (CPRDA) to define certain property rights of a widow or widower in Florida after their spouse passes away. It was passed by the Florida Legislature several years ago.

It is not new policy or new law, but a series of laws that basically organized existing Florida law found both in the Florida Constitution and in court cases. Protecting widows and widowers after they have lost their spouse has been a concern of Florida law for a very long time.

Traditionally, Florida is a “community property state.” This means that the State of Florida has historically viewed the property rights of the surviving spouse as “community property” that are to be vigorously protected as vested property rights.

The Act was passed to protect widows and widowers. It helps by organizing the law in the statutes. Another way it does this is to provide clear guidance on what their rights are in the property held by their deceased husband or wife.

It does this not only by defining specifically what property is considered “community” and what is considered “separate,” but it also provides protection for the widow or widower when there is a question.

Under Florida Statute 732.217, the widow or widower is given an assumption that a questioned piece of property will be “community” in what is called a “rebuttable presumption.” In other words, the surviving spouse is assumed to have a community property interest in that piece of property unless and until that is legally rebutted with sufficient evidence to show otherwise.

3. Half of the Property

What property of the decedent’s estate is involved here?  In CPRDA, Florida law defines what the rights of the surviving spouse are for both real property located in Florida and the personal property of a person domiciled in Florida. It does not impact land or property outside of the State of Florida.

Under the CPRDA, when a married person passes away, one half (50%) of the property to which the Act applies becomes the property of the surviving spouse. It is not subject to probate. It is not part of the decedent’s estate. It does not pass by will or by intestacy statute because it is considered to be owned by the widow or widower — the surviving spouse.

4. Property Covered Under CPRDA

The following property that was acquired by a married person before their death comes under the provisions of CPRDA:

(1) all personal property no matter where it is located, which

A. was acquired as, or became and remained, community property under the laws of another jurisdiction;
B. was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for community property; or
C. is traceable to that community property; and

(2) all real property (land) located in Florida that was

A. was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for property acquired as, or that became and remained, community property under the laws of another jurisdiction; or
B. is traceable to that community property.
(Exception here: Florida land that is held as tenants in the entirety.)

5. Personal Representative Duty to Find Community Property

Under the CPRDA (Florida Statute 732.221), the widow or widower can get the help of their deceased spouse estate’s Personal Representative to clear the title to the community property. Here, the widow or widower has within 3 months from the Notice of Administration to ask that the Personal Representative investigate the community property status of any assets or property held just in the name of the decedent. The Personal Representative has a fiduciary duty to do this if asked by the surviving spouse. The decedent’s personal representative does not have to do this investigation into solely-titled assets otherwise.

Community Property Controversies

In some Florida probate matters, things are complicated. The surviving spouse may not get along with her step-children. The widower may get along fine with the kids, but the Personal Representative has a concern that the widower is keeping property that rightfully belongs to the estate’s beneficiaries.

Having the CPRDA is helpful in solving problems of what the widow or widower rightfully owns after their spouse passes away. The Act’s language as well as investigation into property issues like title conveyance and more can be tricky. An experienced Florida probate lawyer can be helpful both to the surviving spouse as well as the estate’s beneficiaries in determining who owns what as community property after a spouse has passed away.

What Should You Do?

If you believe you have an issue with the rights to property owned by your deceased spouse, a good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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