What to Do If Your Spouse Died Without a Will and Their Family is Cutting You Out

Quick overview: If your spouse died intestate (without a will) in Florida, state law gives the surviving spouse important statutory rights to property, the probate process, and certain decisions about the estate. Family members cannot legally exclude you from those rights simply because they choose to. Below is a plain-language FAQ explaining what those rights are, what steps you can take now, and when to consult an attorney.

Detailed Answer

1. What does “intestate” mean and why it matters

“Intestate” means the person died without a valid will. When that happens in Florida, state law (Chapter 732, Decedent’s Estates) governs who inherits and how the estate is administered. The probate court supervises distribution to heirs and resolves disputes.

Read Florida’s decedent’s estates chapter: Fla. Stat. Ch. 732 (Decedent’s Estates).

2. What share of the estate does the surviving spouse get?

Under Florida law, a surviving spouse normally receives a statutory share of the decedent’s estate. Florida also provides an “elective share” that lets a surviving spouse claim a fixed share of the decedent’s augmented estate even if the deceased left assets to others. See the elective-share rules: Fla. Stat. §732.201 (Elective share). These rules can affect how much you receive when there is no will.

3. Homestead and the surviving spouse

Florida provides strong protection for homestead property (the family home). Homestead rules can allow the surviving spouse to keep the home or receive a life estate in it, depending on whether there are surviving descendants and other facts. Homestead protections are grounded in Florida’s Constitution (see Article X on Homestead) and in the decedent’s estates statutes. For constitutional text: Florida Constitution (Article X, Homestead).

4. Who controls probate decisions and who becomes personal representative?

Probate decisions occur under the supervision of the circuit court. If no will names a personal representative, interested parties can ask the probate court to appoint one. As a surviving spouse you have standing to petition the court to be appointed personal representative or to oppose someone else’s appointment. The court will consider who is eligible and whose appointment best serves the estate and heirs.

5. What if the decedent’s family is excluding me from funeral or estate decisions?

Family members cannot legally prevent you from participating in the probate process or asserting your rights as spouse. If they are interfering with immediate matters—like possession of the body, funeral arrangements, or access to assets—you can ask the court for emergency relief in probate, or in some cases seek help from local law enforcement (for example, to prevent trespass or theft). The probate court can issue orders to return property, stop interference, and appoint a representative.

6. What immediate steps should I take?

Obtain several certified copies of the death certificate.
Gather proof of your marriage (marriage certificate), your ID, and any records showing joint ownership of bank accounts, real property deeds, titles, or beneficiary designations.
Contact the clerk of the circuit court in the county where your spouse lived to find out how to open probate or file for summary administration (if the estate qualifies).
If family members are withholding the body or property, document what happened (dates, communications) and notify the court or police as appropriate.

7. What kinds of probate are there in Florida?

Florida uses a few different probate procedures, including formal administration (court-supervised), summary administration (a faster option for small or older estates), and disposition without administration in very small estates. Which path applies depends on the size and composition of the estate. The clerk of court can explain the forms and process, but if the family objects or there are complicated assets you should talk to an attorney.

8. When should I hire an attorney?

Consider hiring an attorney if any of the following apply:

The deceased owned real property (house, land) and the family is disputing control or access.
Family members are hiding assets, removing property, or attempting to transfer title.
Someone other than you is trying to be appointed personal representative and you want to protect your rights.
The estate appears large or there are complex debts, business interests, or out-of-state property.
You need immediate court orders to prevent harm or loss (emergency relief).

9. Time limits and practical concerns

While Florida allows probate to be opened even months after death, delays can complicate recovery of assets, creditor claims, and property preservation. Open probate promptly to protect your rights—especially if you believe family members will dissipate or hide assets. If creditor deadlines or tax filings are relevant, an attorney can explain specific deadlines that apply.

Helpful Hints

Keep a checklist: certified death certificates, marriage certificate, social security numbers, deeds/titles, bank statements, life insurance beneficiary forms, and retirement account documents.
Document all interactions with the decedent’s family: save texts, emails, and take notes of in-person conversations, including dates and witnesses.
Contact the county probate clerk—many clerks have self-help guides and probate intake forms to start an administration.
Ask for a temporary restraining order or emergency probate order if someone is attempting to sell or hide property.
Remember beneficiary designations (life insurance, IRAs, 401(k)s) and jointly titled accounts often pass outside of probate—check these first.
If you and the decedent were legally separated, or a divorce was pending, your rights can change—bring those records to an attorney.
Don’t sign estate-related forms (quitclaim deeds, releases) until you understand their effect—especially if family members pressure you.

Where to learn more: Start with Florida’s decedent’s estates chapter: Fla. Stat. Ch. 732, and read the elective share statute: Fla. Stat. §732.201. For constitutional homestead protection: Florida Constitution (Article X).

Next practical step: If family members are actively blocking you from participating, contact the probate clerk immediately and consider scheduling an attorney consultation to discuss filing to open probate and asking the court to protect your rights.

Disclaimer

This information is educational only and does not constitute legal advice. Laws change and every situation is different. For advice about your specific situation, consult a licensed Florida attorney.