What Are My Inheritance Rights If I Separated But Did Not Divorce My Spouse? - Florida
The Short Answer
In Florida, if you were still legally married at the time of your spouse’s death, separation alone usually does not eliminate spousal inheritance rights. Your rights depend on whether your spouse had a valid will or died without one, and whether you waived rights in a valid agreement.
What Florida Law Says
Florida generally treats a “separated but not divorced” spouse as a surviving spouse for inheritance purposes. That means you may have rights under (1) Florida’s intestacy rules if there is no will, and/or (2) spousal protections that can apply even when a will exists, unless those rights were properly waived (for example, in a prenuptial or postnuptial agreement).
The Statute
The primary law governing this issue is Fla. Stat. § 732.102.
This statute establishes that a surviving spouse’s share of an intestate (no-will) estate can be the entire estate in some family situations, or one-half in others—depending largely on whether the decedent had descendants and whether those descendants are also descendants of the surviving spouse.
Why You Should Speak with an Attorney
While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:
- Strict Deadlines: Spousal rights can involve time-sensitive elections and claims, and missing a deadline can permanently reduce what you receive.
- Burden of Proof: Disputes often turn on proof about family relationships (for example, which descendants qualify), the existence/validity of a will, and what assets are actually part of the probate estate.
- Exceptions: Your rights may be affected by a valid waiver in a prenuptial/postnuptial agreement, or by how assets were titled or held (for example, certain trust or community-property-related arrangements can change what is subject to distribution).
Trying to handle this alone can lead to avoidable mistakes—especially when other family members contest your status or the estate’s asset list.
Get Connected with a Florida Attorney
Do not leave your legal outcome to chance. We can connect you with a pre-screened Probate attorney in Florida to discuss your specific facts and options.
Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.