Yes! Regardless of whether or not your spouse still resides in the marital home, he or she has claim to a share of the homestead upon your demise.
Example: You have not seen your spouse in years. You no longer maintain a life together and have not spoken to him or her in years. You are aware of the debtor friendly Florida homestead laws that protect your homestead from most creditors allowing it to pass free and clear to your descendants and decide to bequeath your primary residence to your adult children leaving nothing to your spouse.
If you execute a Last Will and Testament devising your homestead to your children alone, your spouse is entitled to claim a life estate in the homestead. Pursuant to Section 732.401 of Florida Statutes "if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent's death". F.S. 732.401(1). Your spouse also has the option of electing to take an undivided one-half interest in the homestead as a tenant in common. F. S. 732.401(2)
The claim is not automatic. The election must be made within 6 months after the decedent's death and during the surviving spouse's lifetime. F.S. 732.401(2)(b).
Bottom line: If you want to disinherit your spouse, you require a properly executed ante-nuptial agreement (post-nup).
