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The Florida Probate Code incorporates certain safeguards to protect the family of the Decedent, specifically the surviving spouse and children. Two such safeguards which often come into play during the administration of an estate are: Exempt Property and Family Allowance. The Exempt Property and Family Allowance statutes are meant to provide immediate relief to surviving family members during the period of administration of the estate, without having to wait for the creditor claims period to expire.

Exempt Property

If a Decedent was a resident of the state of Florida at the time of his or her death, and the Decedent was survived by a spouse or children, then all “exempt property” shall be free from all creditor claims against the Estate, except for perfected security interests thereon. Section 732.402 of the Florida Probate Code sets forth a list of the property that falls within the umbrella of “exempt property,” which includes:

  • Household furniture, furnishings, and appliances in the Decedent’s usual place of abode up to a net value of $20,000 as of the date of death;
  • Two motor vehicles, as long as each motor vehicle has a gross weight of less than 15,000 pounds, and those motor vehicles were owned by the Decedent and regularly used by the Decedent or members of the Decedent’s immediately family as their personal motor vehicles;
  • All qualified tuition programs authorized by Section 529 of the Internal Revenue Code; and
  • All death benefits for teachers and school administrators as contemplated by Section 112.1915 of the Florida Statutes.

There are certain exceptions to the rule governing exempt property. For example, property specifically or demonstratively devised by the Decedent’s will is excluded from exempt property. This means that if a Decedent specifically devises their motor vehicle to someone who is not the surviving spouse or children, then that motor vehicle will not qualify as exempt property under the Florida Probate Code.

Persons entitled to exempt property are required to act fast in order to obtain the exempt property protection offered by the Florida Probate Code. If a surviving spouse or child of the Decedent fails to petition the court for a determination of exempt property on or before 4 months after having received service of the Notice of Administration of the Estate, or 40 days after the termination of any proceeding involving the construction and/or admission of the will, that person’s rights to exempt property are deemed to be waived.

Family Allowance

In addition to exempt property, Section 732.403 of the Florida Probate Code allows for a “Family Allowance” for the surviving spouse or the Decedent’s lineal heirs whom the Decedent was supporting or obligated to support. The Family Allowance is a cash distribution from the Estate which can be distributed to such qualified persons in a lump sum or in periodic installments, but which cannot exceed $18,000. The Family Allowance is awarded in addition to Exempt Property and other protections extended by the Florida Probate Code to the immediate family of a Decedent.