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Written by on Nov 19, 2012| Posted in: General

The Florida Constitution (Article X, Section 4), Florida Statutes, and Florida decisional law delineate the different protections offered to family of a decedent’s homestead property.  Most recently, Fla. Stat. 732.401 was enacted by the legislature and provides, in relevant part, as follows:

(1)  If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but 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 per stirpes.

(2)  In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

Importantly, Section 2 of this statute allows the surviving spouse to elect to take a one-half interest in the homestead in lieu of a life estate interest.  As a result, should the homestead property be sold, the surviving spouse would be entitled to one-half of the proceeds of the sale instead of the calculated value of the life estate interest.  Depending on the age of the surviving spouse and whether he or she wishes (or has the ability) to remain in the property, it may be a wise decision to take a one-half interest.

However, there are certain requirements and time limitations that you and your probate lawyer need to be conscious of when assessing this election.  First, only the surviving spouse (or authorized representative) can make this election.  Second, the election must be made within six (6) months after the decedent’s death.  If the election to take a one-half interest is not timely made, then the surviving spouse will receive a life estate.

An experienced Florida probate lawyer can advise you about homestead property rights and spousal elections.  Call the attorneys at Adrian Philip Thomas, P.A. for a free consultation.



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