Selling an Inherited House With a Pretermitted Spouse Claim in Florida

A will written before a marriage doesn't always account for the spouse who came afterward. Here is what Florida's pretermitted spouse statute provides, when it applies, and why it's worth understanding if a house is part of the estate.

What a pretermitted spouse claim actually is

Under Florida Statute 732.301, when a person marries after making a will and that spouse survives the testator, the surviving spouse generally receives a share of the estate equal in value to what they would have received had the testator died without a will, unless one of the statute's specific exceptions applies. This addresses a will that was simply never updated to reflect a later marriage, which is a different scenario from the elective share; see our guide on selling an inherited house with a spousal elective share claim in Florida for that separate, broader statutory protection that applies regardless of when the marriage occurred.

The three exceptions

F.S. 732.301 does not apply if any of three specific circumstances exist: provision has been made for, or waived by, the spouse through a prenuptial or postnuptial agreement; the spouse is actually provided for in the will itself; or the will discloses an intention not to provide for the spouse. Whether a specific will and marriage fall within one of these exceptions is a fact-specific legal determination, not something to assume from a general description, and it needs to be evaluated by a probate attorney reviewing the actual documents.

How the share is calculated

The statute ties a pretermitted spouse's share to what that spouse would have received under Florida's intestate succession law, not to a single fixed percentage. Under Florida Statute 732.102, a surviving spouse's intestate share can range from one-half of the estate up to the entire estate, depending on whether the decedent has surviving descendants and whether those descendants are also descendants of the surviving spouse. This means the actual dollar or proportional value of a pretermitted spouse's claim depends entirely on the specific family situation and needs to be calculated by a probate attorney for the particular estate.

Where a sale fits

A pretermitted spouse claim is a statutory share of the value of the estate; making the claim does not, by itself, give the surviving spouse title to or authority over any specific asset, including a particular house. How the claim is ultimately resolved, and whether it affects a specific property at all, is determined through the probate process based on the facts of that estate. An as-is cash sale doesn't change the underlying probate process or a pending pretermitted spouse claim; the personal representative still needs the legal authority to sell, and any required court approval, before a sale can close. Confirming the current status of any claim, and how it affects the specific property, is something to do directly with the estate's probate attorney.

Frequently asked questions

What is a pretermitted spouse in Florida?

Under F.S. 732.301, a pretermitted spouse is a surviving spouse the testator married after making a will that was never updated to account for the marriage. Subject to the statute's stated exceptions, that surviving spouse is generally entitled to a share of the estate equal in value to what they would have received if the testator had died without a will.

When does the pretermitted spouse statute not apply?

F.S. 732.301 lists three exceptions: provision has been made for, or waived by, the spouse through a prenuptial or postnuptial agreement; the spouse is actually provided for in the will; or the will discloses an intention not to provide for the spouse. Whether any of these exceptions applies to a specific will and marriage is a fact-specific determination for a probate attorney to evaluate.

How large is a pretermitted spouse's share?

The statute ties it to what the spouse would have received under Florida's intestate succession law, which is not a single fixed percentage. Under F.S. 732.102, the surviving spouse's intestate share can range from one-half of the estate up to the entire estate, depending on whether the decedent has surviving descendants and whether those descendants are also descendants of the surviving spouse. The specific share for a given estate depends on these facts and needs to be calculated by a probate attorney.

Can a pretermitted spouse claim affect selling an inherited house?

It can. A pretermitted spouse claim is a statutory share of the value of the estate; making the claim does not by itself give the surviving spouse title to or authority over any specific asset, including a particular house. How the claim is resolved, and whether it affects a specific property, is determined through the probate process based on the facts of that estate, and needs to be evaluated by the probate attorney handling the case.

Handling an estate with a pretermitted spouse question? Call OfferLink at 407-584-9111. We buy probate and estate property across Florida, including Hillsborough County, Pinellas County, and Duval County. This article is general information, not legal advice. A Florida probate attorney reviewing the specific estate is the right resource for confirming how a pretermitted spouse claim affects a particular sale.