Several states and foreign jurisdictions recognize the concept of “community property.” Community property generally consists of any property purchased during a marriage, as well as any income received or debts incurred. However, it generally does not include assets or debts acquired before the marriage, or inheritances or gifts received by one spouse during the marriage. When a spouse dies, the survivor is entitled to half of any assets falling within the community property guidelines.

Florida is not a community property state, but state law provides that assets qualifying as community property in other jurisdictions be recognized as such when a spouse passes away. This can make the probate process more complicated, particularly if property is titled only in the name of one spouse. According to the Florida Uniform Disposition of Community Property Rights at Death Act, a surviving spouse must file a claim and obtain a court order to confirm the property in question is indeed community property.

When an estate enters probate, a notice must be filed giving creditors three months within which to bring claims against the estate. Recently, Florida’s Fourth District Court of Appeal affirmed a final order by the Fifteenth Judicial Circuit holding that a surviving spouse’s claim to property titled solely in a deceased spouse’s name is subject to the same three-month time limit as creditors’ claims. If the claim is not filed within that time frame, the spouse will be unable to obtain a determination as to whether the property was indeed community property, and could lose her fifty percent share.

Many issues that might arise pertaining to community property can be addressed during the estate planning process. Speak with an experienced Florida trusts and estates attorney who can provide sound guidance and help with avoiding estate administration pitfalls.