Analyzing Spousal Rights in Florida

Spousal rights in Florida arise in court due to two common scenarios. These are death and divorce. We’ll delve into each case to uncover what rights a divorced, or surviving spouse is entitled to according to Florida state laws.

Divorce Spousal Rights

Florida courts do not take into account a person’s gender when executing marital rights. This is especially important when the courts are deciding how an estate is to be divided between both parties upon termination of a marriage, or divorce.

Additionally, as long as one partner has been a permanent resident of the state of Florida for no less than 6 months, either party can justify a divorce on “irreconcilable differences” without stating dissolution grounds.

With that in mind, here’s a look at spousal rights in Florida under circumstances of divorce:

Division of Property

Florida law abides by the principle of “equitable distribution.”

This requires a fair (not equal) distribution of property. That means that all non-marital property is not under consideration for the division as the original pre-marital owner retains possession of these types of assets.

In other words, if one spouse has an asset before the marriage, it isn’t a joint asset in the divorce proceedings.

However, when it comes to marital property, several things determine what each spouse gets.

These considerations include how long the marriage lasted, custody outcomes – for example, the court may decide that the custodial parent retains residential ownership for the sake of the children – and the courts may consider spousal requests to keep possession of certain assets.

The role of each partner (homemaker or breadwinner) is taken into account as well, alongside wastefulness leading up to the divorce.


If there is a gaping difference in property entitlements between spouses, the partner on the unfavorable end can seek alimony.

The exact monetary provision a court deems appropriate hinges on the marriage duration and custody awards. Illness and other conditions that hinder employment will also be considered. The reason for the divorce, such as abandonment, adultery, or abuse, can also influence the court’s decision to award or dismiss alimony claims. This can take years to settle if there is a clear and reasonable way to settle a marriage outside of court.

If the spouses can agree on the divorce terms, the process can be quite painless.

Custody and child support

While each parent receives equal consideration from the court in terms of custody, there’s more to consider.

As a matter of fact, there are several factors that determine how a Florida court judges custody cases. The child’s preference, relationship strength or parental bonds, and the ability of a parent to provide a stable home are all contributing factors.

Meanwhile, child support goes to the parent with custodial rights, and the amount depends on the number of children.

The nature of the custody – which parent spends more time with the children – and joint income between spouses can affect the outcome of this.

Surviving Spousal Rights

On the other hand, surviving spousal rights in Florida include the following:

Complete inheritance for intestate cases.

The spouse gets everything if either of two scenarios pans out.

First, if the deceased partner has no descendants (great-grandchildren, grandchildren, or children). In this case, the spouse gets everything. Sometimes nieces, nephews, or cousins will try to get a slice of the pie. However, this is not usually on the table. 

Secondly, if the children are of both spouses, i.e., neither spouse came into the marriage with children from another relationship.

Partial inheritance for intestate cases.

In circumstances where the above condition doesn’t hold up (there are children from prior relationships), then the descendants equally split half of the estate among themselves.

The other half of the estate goes solely to the surviving spouse.

It’s also worth noting that an unborn child conceived by the deceased spouse, also qualifies as an inheriting descendant.

The ability to contest a will.

A surviving spouse can challenge a will under Florida law to get around disinheritance.

Up to 30% of the estate, including insurance policies, “payable on death” properties, and co-owned property covered by a right of survivorship are all eligible. Further, property transfers in the year leading up to the death count as well.

This is especially common in cases like Anna Nicole Smith’s marriage to oil tycoon J. Howard Marshall II.

I’m sure his surviving children and grandchildren weren’t happy about this. The fact that she could inherit 50% of his wealth may be perturbing to anyone. Especially after marrying him when he was already a wheelchair-bound, 89-year-old.

Conversely, is it a ridiculous idea to think that the surviving wife should expect to receive some sort of inheritance following her husband’s death?

Cases like these are all too common, and Attorney David Silverstone is able to handle either side of the matter.

Homestead (marital home) polices

Florida law requires that a matrimonial home cannot be divided if a minor is in the equation. Generally, the courts try to keep the interests of children in mind in these kinds of cases. Otherwise, when minors aren’t in the picture, the estate (including property) is usually given to the surviving partner.

Immigration status is a non-issue

Regardless of citizenship, a spouse can still inherit property as per the Florida spousal rights laws. In other words, even if a surviving spouse isn’t a US citizen at the time of the spouse’s death, he or she can inherit property. They can legally become the owner of the deceased spouse’s property before they are a legal citizen.

Get in touch with a good lawyer for further assistance

Are you a divorced or surviving spouse in need of legal help?

Get in touch with us today to help you fully realize and acquire what you are entitled to under state law.