Florida Homestead Law Update
On October 1, 2010, Florida Statute 732.401(2) was added to update Florida Homestead law, as least partially in response to the escalating insurance and property tax rates in recent years.
Under the old Florida Homestead law, if a decedent did not devise his homestead property pursuant to the requirements of the Florida Constitution and was survived by a spouse and at least one lineal descendant, then the surviving spouse would receive only a life estate with the remainder passing to the descendant(s).
A life estate might sound great, but it comes with many financial responsibilities, including property taxes, insurance, special assessments (if applicable), mortgage interest, etc. Furthermore, if the remainder beneficiaries refused to agree to sell the property, there was not much recourse for the surviving spouse.
The new Florida Homestead law allows a surviving spouse to elect to receive a tenant-in-common, one-half interest in the decedent’s homestead property instead of a life estate. This interest allows the surviving spouse and the lineal descendants to have separate and – most importantly – severable interests in the property. The election must be made within six months after the decedent’s death and must be made during the surviving spouse’s lifetime. The election is irrevocable once made.
The new Florida Homestead law provides some much-needed relief to surviving spouses who were being burdened by the very laws created to protect them.