When a Surviving Spouse Must Act in Florida Probate: Deadlines, Rights, and Elections

In Florida probate, a surviving spouse must act within firm statutory deadlines to claim the protections the law reserves for them — most notably the 30% elective share, the homestead election, exempt property, and a family allowance. These rights are not automatic; several of them are waived if the spouse does not affirmatively elect or petition in time. The clock usually starts when the spouse is served with the formal notice of administration, and some of the windows are as short as four to six months.

I have watched too many surviving spouses in Palm Beach County learn this the hard way, often because they were grieving, often because no one told them the deadlines were running. This article walks through exactly when a surviving spouse must act, what each deadline protects, and where the traps are. It is general information, not legal advice for your situation — but it should help you understand why timing matters so much in a Florida estate.

What “must act” means for a surviving spouse in Florida probate

Florida law gives a surviving spouse a bundle of distinct rights, and each one has its own trigger and its own deadline. Some, like intestate inheritance, fall to the spouse automatically. Others — the elective share, the homestead election, exempt property, and the family allowance — require a written election or petition filed with the probate court. Miss the window, and the right generally disappears.

That distinction trips people up. A spouse may assume that because they are entitled to “their share,” it will simply arrive. It will not. The personal representative (Florida’s term for the executor) administers the estate according to the will and the statutes, but it is not their job to file the spouse’s elections for them. In a contested matter — and the transition from a contested guardianship into a probate is one of the most contested settings we see — an opposing personal representative has every incentive to let the spouse’s deadlines quietly lapse.

The notice of administration starts most clocks

After the will is admitted and a personal representative is appointed, the personal representative serves a notice of administration under Florida Statute § 733.212 on interested persons, including the surviving spouse. Read that notice carefully and note the date you were served. Several of the most valuable spousal deadlines run from that service date, not from the date of death and not from the funeral.

If you have any objection to the validity of the will, the qualifications of the personal representative, or the venue or jurisdiction of the court, those objections are also tied to the notice of administration and must generally be raised within three months of service. Once that window closes, your ability to contest the will itself narrows dramatically.

The elective share: 30% of the elective estate (§ 732.201)

Florida does not let a spouse be disinherited. Under § 732.201, a surviving spouse may elect to take an elective share equal to 30% of the decedent’s “elective estate.” The elective estate is broader than the probate estate — it reaches certain non-probate assets such as revocable trust property, jointly held accounts, and some transfers made before death, all computed under §§ 732.2035 and following. This is the right that most often defeats an attempt to cut a spouse out through a trust or beneficiary designations.

When the elective share election must be filed

The deadline lives in § 732.2135. A surviving spouse must file the election on or before the earlier of:

• Six months after the date the notice of administration is served on the spouse; or
• Two years after the decedent’s date of death.

The court can extend the six-month window if the spouse files a petition for extension before the period runs — for example, when the value of the elective estate is genuinely unknown because assets are still being traced. But you cannot count on an extension. The safe practice is to make the election within the original window and litigate valuation afterward.

One more point that surprises clients: the spouse can take the elective share in addition to homestead, exempt property, and the family allowance. Those protections sit on top of the 30%, not inside it.

Homestead: life estate or an undivided one-half interest (§ 732.401)

The Florida homestead is its own world. If the decedent owned a homestead and is survived by a spouse and one or more descendants, § 732.401 gives the spouse a life estate in the homestead, with a vested remainder to the decedent’s descendants. But the spouse may instead elect to take an undivided one-half interest as a tenant in common, with the other half passing to the descendants.

This choice has real consequences. A life estate keeps you in the home for life but burdens you with taxes, insurance, and upkeep while the remaindermen wait. A one-half tenancy-in-common interest gives you a marketable, sellable share but forces co-ownership with the children — who may be stepchildren with very different goals. There is no universally right answer; it depends on your age, the property’s value, your relationship with the descendants, and whether you intend to stay.

The homestead deadline is short and unforgiving

The election for the undivided one-half interest must be filed within six months of the decedent’s death, and it is made by recording a notice of election in the public records of the county where the homestead sits. Critically, this is a statute of repose: the six-month homestead-election deadline is not extendable for any reason, before or after it expires. If a guardian or agent under a power of attorney is making the election for an incapacitated spouse, a petition for court approval must be filed within those same six months and during the spouse’s lifetime. This single deadline is the one I worry about most in cases that come out of a contested guardianship, because the spouse is often the very person whose capacity was in dispute.

Exempt property: furniture and vehicles (§ 732.402)

Section 732.402 sets aside certain property for the surviving spouse (or, if none, the decedent’s children) free from claims of creditors. Exempt property includes:

• Household furniture, furnishings, and appliances in the decedent’s usual residence, up to a net value of $20,000 as of the date of death;
• Two motor vehicles, each under 15,000 pounds gross weight, that the decedent regularly used; and
• Certain qualified tuition program funds and statutorily designated teacher/administrator death benefits.

To preserve these rights, the spouse must file a petition to determine exempt property within the earlier of four months after service of the notice of administration, or 40 days after the termination of any proceeding involving the will’s construction or admission. Fail to petition in time and the exempt-property right is deemed waived. It is a modest amount of money, but the four-month window is one of the shortest on this list, and it is easy to overlook while you are focused on the bigger fight over the elective share.

Family allowance during administration (§ 732.403)

Probate takes time, and bills do not pause. Section 732.403 lets the surviving spouse and the decedent’s lineal heirs the decedent was supporting receive a reasonable family allowance, capped at a total of $18,000, paid out of the estate for maintenance during administration. The court may order it as a lump sum or in installments, and it is in addition to — not deducted from — the spouse’s other shares. There is no rigid statutory deadline, but it should be requested early in the administration, because its entire purpose is to support the family while the estate is open.

How contested guardianship-to-probate transitions raise the stakes

Many of the surviving-spouse cases we handle in West Palm Beach do not start in probate at all. They start in a guardianship — frequently a contested one, where family members fought over who would control an ailing spouse’s finances and care. When that spouse later passes, the guardianship file closes and the estate opens, and all of the deadlines above suddenly start running against a spouse who may still be elderly, ill, or under a guardianship of their own.

In that posture, three things matter enormously. First, whether the surviving spouse retained capacity to make their own elections, or whether a guardian or agent must act on their behalf within the same compressed deadlines. Second, whether assets were moved during the guardianship in ways that shrink the elective estate — those transfers can sometimes be pulled back in. Third, whether the will or trust now being offered for probate is itself the product of undue influence, which connects the probate fight to the same dynamics that drove the guardianship dispute. The mechanics of challenging a suspect instrument echo what our colleagues describe in — the doctrines differ by state, but the patterns of undue influence and capacity litigation rhyme across jurisdictions.

A practical timeline for the surviving spouse

If you are a surviving spouse and an estate is opening, here is the order I tell clients to think in:

1. Find the date of death and the date you were served the notice of administration. Write both on the front of the file. Almost every deadline keys off one of them.
2. Calendar the six-month homestead deadline first, because it cannot be extended.
3. Calendar the four-month exempt-property petition and the elective-share window (earlier of six months from service or two years from death).
4. Request the family allowance promptly if you need support during administration.
5. Preserve any will contest or personal-representative objection within three months of the notice of administration.
6. Get a full picture of non-probate assets — trusts, joint accounts, beneficiary designations — because they feed the elective estate.

For a broader overview of how a Florida estate is administered from start to finish, see our discussion of Florida probate administration, and if questions about the validity of the will itself are in play, our page on Florida wills and will contests covers the grounds. You can also reach our team directly through our contact page if a deadline is approaching.

Where to get help

These deadlines are real, and Florida courts enforce them. A surviving spouse who acts early keeps every option open; a spouse who waits often forfeits rights worth far more than the filing would have cost. If you are facing a Florida estate — especially one emerging from a contested guardianship — talk to a probate attorney before any of these windows close. Our firm handles these matters throughout Palm Beach County, and you can learn more about our . For the broader framework of how estates are settled and administered, this overview of is a useful companion read.

Frequently Asked Questions

How long does a surviving spouse have to claim the elective share in Florida?

Under Florida Statute 732.2135, the surviving spouse must file the elective-share election by the earlier of six months after being served the notice of administration or two years after the decedent’s death. The six-month portion can sometimes be extended if the spouse petitions the court before it expires, but it is safest to file within the original window.

Can a Florida surviving spouse be completely disinherited?

No. Florida’s elective share (Statute 732.201) lets a surviving spouse claim 30% of the decedent’s elective estate, which reaches beyond the probate estate to include certain trust assets, joint accounts, and pre-death transfers. Homestead protections under Statute 732.401 further prevent a spouse from being deprived of the marital home.

What is the deadline to make the Florida homestead election?

The election to take an undivided one-half interest in the homestead instead of a life estate must be filed within six months of the decedent’s death and recorded in the county where the property sits. This six-month deadline is a statute of repose and cannot be extended for any reason, so it should be calendared first.

What property is exempt for a surviving spouse in Florida probate?

Under Statute 732.402, exempt property includes household furniture and appliances up to $20,000 in net value, two qualifying motor vehicles, and certain education-savings and teacher death benefits. The spouse must petition to determine exempt property within four months after service of the notice of administration or the right is waived.

Is the family allowance separate from the elective share?

Yes. The family allowance under Statute 732.403, capped at $18,000, supports the surviving spouse and dependents during administration and is paid in addition to the elective share, homestead rights, and exempt property. It does not reduce the spouse’s other shares and should be requested early in the probate.