Rights of a Surviving Spouse in Florida Probate

Rights of a Surviving Spouse in Florida Probate

While Florida is not a community property state when it comes to determining the division of assets in a divorce, Florida does recognize the community property rights of a surviving spouse when property is acquired during the marriage.

Under Florida law, anything owned by either spouse prior to marriage is considered to be individually owned and not community property unless the right legal steps are taken to make it so. Property acquired during the marriage — whether it be real estate, an art collection or jewelry — is community property unless it was gifted by one spouse to the other. Inheritances are also considered to be separate from marital community property.

Under the Florida Uniform Disposition of Community Property Rights at Death Act (CPRDA), it is assumed that a surviving spouse has a community property interest in the couple’s assets unless it can be proven otherwise. Under the CPRDA, a surviving spouse is entitled to half of the property to which the CPRDA applies, including:

• All personal property, no matter where located, that was acquired:
  • As community property under the laws of another state;
  • With the rents, issues or income of, or the proceeds from, or in exchange for, community property; or
  • Is traceable to that community property.
• All real property in Florida except property held as tenants by the entirety that was acquired:
  • With the rents, issues, or income of, or the proceeds from, or in exchange for property acquired as, or which became and remained, community property under the laws of another jurisdiction; or
  • Is traceable to that community property.

The surviving spouse can request that the executor of the decedent’s estate clear title to the community property and investigate the community property status of any real property held in the decedent’s name alone.

Florida probate can be a complicated process, especially in the case of remarriage and blended families. At Jurado & Farshchian, P.L., we provide solutions to complex problems that relieve the burden of probate for individuals and families. Contact one of the experienced Florida probate attorneys at Jurado & Farshchian, P.L., at (305) 921-0440, or email us at info@jflawfirm.com.

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