If a spouse dies, how much of the deceased spouse's property does the surviving spouse receive?

There is a relatively recent change in Florida Law dealing with families and the disposition of the estate when the first of two spouses dies, and there is no Last Will & Testament.  Such a condition is known as “Intestacy.”  In that situation where there is no Will, the laws of the State of Florida, the intestacy laws, dictate to whom the decedent’s property will pass at the death of a person. The following discussion does not apply to the homestead of a deceased spouse, if it is owned solely by the deceased spouse.  Laws dealing with Homestead control that piece of property as opposed to the following which governs all other individually owned property.

In a classic family situation of a husband and wife, and only children of that union, and where there is no Last Will & Testament, on the death of the first spouse any property solely owned by the deceased spouse is governed and distributed under the intestacy laws.  For years, in that situation, the first $60,000.00, went to the surviving spouse, along with one half of the balance.  The remaining part of the estate was split equally between the couple’s children.

This was contrary to the thinking of most people, as usually it was assumed that the surviving spouse would receive all of the decedent’s solely owned property.  Also, it was contrary to the situation where there was intestacy and the husband and wife owned all of their property jointly or as tenancy by the entirety, where the surviving spouse receives that property on the death of the first spouse.

Effective October 1, 2011, F.S.§732.102 was amended to provide that in the above situation, at the death of the first spouse, all of a decedent’s individually owned property at the time of the decedent’s death, passes to the surviving spouse and is not divided, as provided above, among the children of that union.  Note, however, if either spouse had children that were not the product of that union, the individually owned property of the deceased spouse passes as follows: the surviving spouse receives one half of the deceased spouse’s individually owned property and the remaining one half went to the children of the deceased spouse.