Exempt Property Under Florida Probate Code

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The Florida Probate Code provides that the surviving spouse, or if there is no surviving spouse, the children, may have a right to receive a share of the estate free from creditors.  This share is known as Exempt Property.  The exempt property statute is Section 732.402.

Who Is Entitled to Exempt Property?

If the decedent was a resident of Florida, certain family members may receive the exempt property.  If the decedent was married at the time of death, the surviving spouse can receive the exempt property.  If not married, the children of the decedent can receive the exempt property.

What Property Can Be Exempt?

  • Household furnishings at the usual place of abode, valued at no more than $20,000
  • Two motor vehicles held in the decedent’s name and regularly used by the decedent and or members of the immediate family.  Each vehicle cannot weight more than 15,000 pounds.
  • Qualified tuition programs under Section 529 of the Internal Revenue Code
  • Certain types of educator death benefits

Any Additional Rules?

If the exempt property is bequeathed in a will to someone who would not be entitled to exempt property, the property goes to that person as non-exempt property.  Otherwise, the property is exempt.

How Is Exempt Property Claimed?

A petition for the determination of exempt property must be filed by the later of (i) 4 months after the date of service of the notice of administration, or (ii) 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of a will or involving any other matter affecting any part of the estate subject to exempt property.  In case of doubt as to when to file, a protective exempt property election should be filed.

What is the Benefit of Exempt Property?

  • Exempt from the claims of creditors
  • Excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.

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