Family allowance & exempt property in Florida
Florida gives the surviving spouse and minor children rights that ride above creditors and even above the will: an immediate cash allowance and a chunk of exempt personal property. Here's how the rules work.
Florida is unusually protective of surviving spouses and minor children. Two specific rights — the family allowance and exempt property — sit above almost everything else in probate. They override most creditor claims, and in many cases they override what the will says. Most heirs don't know they exist.
Both rights are statutory: family allowance under FS 732.403, exempt property under FS 732.402. Below: what each one is, who qualifies, how much, and how to claim them.
Family allowance — immediate support
Family allowance is a cash payment from the estate to support the surviving spouse and minor children during the period of administration — bridging the gap between death and final distribution.
- Amount: up to $18,000 total under current Florida statute. Court can approve more in unusual circumstances.
- Who gets it: surviving spouse, and/or any minor children of the decedent (regardless of whether the spouse and children are related).
- Paid as: lump sum or periodic installments — court decides based on family's needs.
- Source: paid out of probate-estate assets, ahead of most creditor claims and ahead of distribution to other beneficiaries.
- Priority: ranks just behind funeral expenses and administration costs in Florida's order of payment.
The practical use: a surviving spouse who suddenly lost the family income now has up to $18,000 to cover groceries, utilities, mortgage payments, and the kids' immediate needs while probate runs its course.
Exempt property — keep specific items
Separate from family allowance, surviving spouse and minor children are entitled to keep specific categories of personal property regardless of what the will says or what creditors claim.
- Furniture, appliances, and other household furnishings in the decedent's usual residence — up to $20,000 in net value.
- Two motor vehicles held in the decedent's name and regularly used by the decedent or family members.
- Qualified tuition program (529 plan) accounts owned by the decedent.
- Death benefits owed to teachers and school administrators under specific Florida statutes.
Who qualifies — the order
Family allowance and exempt property follow this priority:
- First: surviving spouse, if any. Spouse claims the allowance and exempt property.
- If no surviving spouse: lineal heirs (typically minor children) take the allowance and exempt property.
- Both: spouse and minor children may both share, depending on circumstances and court orders.
How to claim them
Both rights must be claimed — they are not automatic. The claim is filed with the probate court, typically by the personal representative on behalf of the spouse or by counsel for the spouse directly.
- Petition for family allowance: file early in administration. Court reviews and orders payment from estate funds.
- Petition for exempt property: identifies the specific items being claimed; PR confirms title and delivers them.
- Deadline: must be claimed within the time limits of administration. Don't wait until distribution — claim early.
- Counsel: spouse may have separate counsel from the PR if interests diverge (especially in second-marriage situations where the PR is a child from a prior relationship).
How they interact with creditors and the will
Both rights take priority over most claims:
- Above unsecured creditors: ordinary creditor claims yield to family allowance and exempt property.
- Above general beneficiaries: even if the will leaves everything to others, the spouse/minor children get their statutory share first.
- Below funeral expenses, administration costs, and federal taxes: these come first.
- Below secured creditors on the specific asset: a car with a loan goes through the loan first; spouse keeps the equity, not the asset.
Common pitfalls
- Forgetting to claim them: the rights are easily overlooked, especially when family is grieving and PR is rushing.
- Waiting too long: claims must be timely; the court won't backfill.
- Confusing exempt property with homestead: different rules, different statutes.
- Misunderstanding 'minor children': must be the decedent's biological or legally adopted children under 18 — stepchildren do not qualify unless legally adopted.
- Conflict with the will: when the spouse claims rights that contradict the will, family conflict often follows. Counsel for the spouse and a separate counsel for other beneficiaries may both be appropriate.
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