Family allowance and exempt property in Florida: amounts, eligibility and deadlines
What Florida pays a surviving spouse and dependent family from the estate: the family allowance, capped at $18,000 under § 732.403, and exempt property under § 732.402, with who qualifies, the 4-month deadline, how to petition, and how each ranks against creditors and the will.
Two statutory rights come ahead of the will for a family when the decedent was domiciled in Florida. The family allowance is a sum of money from the estate for maintenance during administration, capped at a total of $18,000 (§ 732.403, Fla. Stat. (2026)). Exempt property is a defined set of household items, vehicles and education accounts that goes to the surviving spouse or, if there is no spouse, to the decedent's children (§ 732.402). Both are in addition to protected homestead.
Neither is automatic in court. Exempt property is waived unless a petition is filed within the time in § 732.402(6), and the allowance is set by court order on petition (Fla. Prob. R. 5.406 and 5.407). The Sources section lists every authority, last checked October 17, 2026.
| Family allowance | Exempt property | |
|---|---|---|
| Statute | § 732.403 | § 732.402 |
| Decedent | Domiciled in Florida at death | Domiciled in Florida at death |
| Who receives it | The surviving spouse, and the decedent's lineal heirs whom the decedent was supporting or was obligated to support | The surviving spouse or, if there is none, the decedent's children |
| What it is | A reasonable allowance in money for maintenance during administration | Household furnishings up to $20,000 net value, two motor vehicles, 529 plans, and benefits under § 112.1915 |
| Limit | A total of $18,000 | $20,000 net value for the household items. The vehicle, 529 and § 112.1915 items have no dollar cap in the statute. |
| How paid | Lump sum or periodic installments, as the court orders | The items are surrendered to the persons entitled, on a court order |
| Deadline | None stated in § 732.403 | Petition on or before the later of 4 months after service of the notice of administration, or 40 days after a will or estate dispute ends. Otherwise waived. |
| Against creditors | Class 5 in the order of payment, after administration costs, funeral expenses, preferred debts and taxes, and last-illness medical expenses | Exempt from all claims except perfected security interests |
| Court procedure | Fla. Prob. R. 5.407 | Fla. Prob. R. 5.406 |
Sources: § 732.402, § 732.403 and § 733.707(1), Fla. Stat. (2026); Florida Probate Rules, October 15, 2026 edition. A surviving spouse may waive these rights in a signed agreement (§ 732.702).
Who qualifies
Both rights require that the decedent was domiciled in Florida at death. "Domicile" means a person's usual place of dwelling and is synonymous with residence (§ 731.201(13)). A nonresident's estate does not generate either right under these sections.
- Surviving spouse. Takes the exempt property. Takes the family allowance for the use of the spouse and dependent lineal heirs (§ 732.403).
- Children, for exempt property. Only if there is no surviving spouse. The statute says "children of the decedent," with no age limit. A "child" includes a person who takes as a child by intestate succession and excludes a person who is only a stepchild, foster child or grandchild (§ 731.201(3)).
- Lineal heirs, for the allowance. Lineal ascendants and descendants whom the decedent was supporting or was obligated to support. If the spouse is not living, the allowance is paid to the lineal heirs or to the persons who have their care and custody. If a lineal heir does not live with the spouse, the court may pay part to that heir or guardian and part to the spouse as their needs appear (§ 732.403).
- Death of a recipient. The death of a person entitled to the allowance ends the right to the part not yet paid (§ 732.403).
- Waiver. A surviving spouse's rights to exempt property and family allowance can be waived by a written agreement signed in the presence of two subscribing witnesses. A waiver of "all rights" or equivalent words waives them unless the agreement says otherwise (§ 732.702(1)).
Family allowance
- Cap. "The allowance shall not exceed a total of $18,000." The statute sets the cap as a total, and it contains no provision for a larger amount (§ 732.403).
- Amount within the cap. A "reasonable allowance in money" for maintenance during administration. The court decides the amount on the petition and the needs shown.
- Payment. The court may order a lump sum or periodic installments.
- Effect on the inheritance. The allowance is not charged against any benefit or share otherwise passing to the spouse or dependent lineal heirs, unless the will provides otherwise.
- Priority. Class 5 in § 733.707(1). Classes 1 through 4 are paid first: costs and expenses of administration and attorneys' fees; funeral and interment expenses up to $6,000; debts and taxes with federal preference, claims under §§ 409.9101 and 414.28, and state court costs; and medical and hospital expenses of the last 60 days of the last illness. If the estate cannot pay a class in full, that class is paid ratably (§ 733.707(2)).
The petition is verified and states the names and addresses of the surviving spouse and adult lineal heirs, the initials, address and year of birth of minor lineal heirs the decedent was supporting or was obligated to support, and, for each person, the relationship, the basis for the claim and the amount sought. The order names each adult and each minor's initials, the amount, the method of payment and the payee (Fla. Prob. R. 5.407).
Exempt property
Exempt property consists of four categories (§ 732.402(2)):
- (a) Household items. 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.
- (b) Two motor vehicles. Vehicles as defined in § 316.003 that each have a gross vehicle weight of 15,000 pounds or less, held in the decedent's name and regularly used by the decedent or members of the immediate family as personal vehicles.
- (c) 529 plans. All qualified tuition programs under section 529 of the Internal Revenue Code, including Florida Prepaid College Trust Fund contracts and agreements under §§ 1009.98 and 1009.981.
- (d) Teacher and school administrator death benefits paid under § 112.1915.
Bank accounts, brokerage accounts, retirement accounts and real estate other than protected homestead are not in the list. The categories are fixed by the statute.
Exempt property is exempt from all claims against the estate except perfected security interests (§ 732.402(3)). A vehicle with a loan passes subject to the lender's lien. The exemption is in addition to protected homestead, statutory entitlements and property passing under the will or by intestacy (§ 732.402(4)).
How the rights interact with the will and other shares
| Question | Answer | Source |
|---|---|---|
| Does the will control exempt property? | Property specifically or demonstratively devised to a devisee is not included in exempt property. A person to whom it was devised and who would otherwise be entitled may ask the court to determine it exempt from claims, after meeting the petition deadline. | § 732.402(5)-(6) |
| Does it count toward the surviving spouse's other shares? | Property determined to be exempt is excluded from the value of the estate before the residuary, intestate, pretermitted or elective shares are determined. | § 732.402(7) |
| Is the family allowance charged against what the spouse inherits? | No, unless the will provides otherwise. | § 732.403 |
| Does protected homestead count against either? | No. Both are in addition to protected homestead. | § 732.402(4); § 732.403 |
| Can the surviving spouse also elect against the will? | Yes. The elective share is a separate right with its own rules and deadline. | Spousal elective share guide |
| Can the rights be waived? | Yes, by a written agreement signed before two subscribing witnesses, before or after marriage. | § 732.702(1) |
How to claim each right
Steps for a family in an open probate. The petitions are filed in the probate case.
- 1. Find the notice of administration date. The exempt property deadline runs from service of the notice of administration on the person claiming (§ 732.402(6)).
- 2. File the petition to determine exempt property. Any interested person may file. The verified petition describes the property and the basis for the claim, and states the surviving spouse's name and address or, if none, the names and addresses of the children entitled, with the year of birth of minors (Fla. Prob. R. 5.406(a)-(b)).
- 3. File the petition to determine family allowance. Any interested person may file. Contents are in Fla. Prob. R. 5.407(b).
- 4. Serve the interested persons. The rules on notice and service apply (Fla. Prob. R. 5.040 and 5.041).
- 5. Obtain the order. For exempt property the court determines each item and its value if needed, and orders the property surrendered to the persons entitled (Fla. Prob. R. 5.406(c)). For the allowance the order sets the amount, the method of payment and the payee (Fla. Prob. R. 5.407(c)).
- 6. Collect. The personal representative delivers the property and pays the allowance in the order of priority in § 733.707.
If the estate consists only of exempt personal property, personal property exempt from creditors under the Constitution, and nonexempt personal property no greater than preferred funeral expenses plus last-illness medical expenses, no administration is required. Upon informal application, the court may authorize the transfer of the property to those entitled (§ 735.301). In a summary administration, the order of summary administration assigns parts of the estate, including exempt property, to the persons entitled (§ 735.206(4)(a)).
Worked example
The facts in Table 3 are assumed for illustration. A Florida resident dies survived by a spouse and an adult daughter whom the decedent supported. The home is protected homestead. Household furnishings have a net value of $26,000, and there are two cars titled in the decedent's name, each under the weight limit.
| Item | Result | Source |
|---|---|---|
| Home | Passes as protected homestead. Not part of exempt property or the allowance. | § 732.402(4) |
| Household furnishings, net value $26,000 | $20,000 of net value is exempt property. The remaining $6,000 of value passes under the will or intestacy. | § 732.402(2)(a) |
| Two cars | Both are exempt property to the spouse, subject to any lender's perfected lien. | § 732.402(2)(b), (3) |
| Family allowance | The court may award the spouse an allowance for the spouse and the dependent daughter, up to a total of $18,000. | § 732.403 |
| Deadline | Exempt property petition: later of 4 months after service of the notice of administration, or 40 days after a will or estate dispute ends. | § 732.402(6) |
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site.
- § 732.402 and § 732.403, Fla. Stat. (2026). Exempt property; family allowance.
- § 732.702, Fla. Stat. (2026). Waiver of spousal rights.
- § 733.707, Fla. Stat. (2026). Order of payment of expenses and obligations.
- § 731.201, Fla. Stat. (2026). General definitions (child; domicile).
- § 735.206 and § 735.301, Fla. Stat. (2026). Summary administration distribution; disposition without administration.
- § 112.1915, § 316.003, Fla. Stat. (2026). Teacher and school administrator death benefits; vehicle definitions.
- Art. X, § 4, Fla. Const.. Homestead and exemptions.
- Fla. Prob. R. 5.040, 5.041, 5.406 and 5.407, Florida Probate Rules, October 15, 2026 edition, The Florida Bar.
- Ch. 2026-57, Laws of Fla., effective July 1, 2026. Did not amend §§ 732.402, 732.403 or 733.707.
What people ask us about this.
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