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Spousal Election to Take One-Half Interest in Decedent’s Homestead Property

Written by on May 24, 2019| Posted in: Probate

WARNING:  If a surviving spouse wants 50% of the homestead property, he or she need to give notice of the election within 6 months of death – no exceptions!

Homestead property in Florida is complicated.  What constitutes “homestead” is defined by Article X, Section 4 of the Florida Constitution. Homestead property is protected against levy and execution by most judgment creditors (and against creditor claims post death), receives special property tax treatment and is subject to specific restrictions on its descent and devise upon the death of the owner.  This blog is about the descent and devise of homestead.

Florida Statute §732.401(1) provides:

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. (emphasis supplied)

So, assume John owns his homestead property in his sole name even though he is married to Mary and they have two adult children.  If John dies before Mary and has not devised his homestead “as authorized by law,” then Mary will receive a life estate and the two adult children will receive the remainder interest.  However, Florida law provides another option.

In lieu of the life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead as tenant-in-common with the remainder beneficiaries.  This right of election may be exercised by the surviving spouse or, with the approval of the court, by the surviving spouse’s attorney-in-fact or guardian.  Fla.Stat. §732.401(2) and (2)(a)(1)-(2).  Whether the surviving spouse would be better served by a life interest or by co-ownership depends on many factors, including the age of the surviving spouse and the cost of maintenance of the property.  If a surviving spouse or someone acting on behalf of the surviving spouse determines the co-tenancy is in the spouse’s best interest, the election must be made within six months after the decedent’s death and during the surviving spouse’s lifetime.  Fla.Stat. §732.401(2)(b).

 

In Samad v Pla, — So.3d — (Fla. 2d DCA 2019), 44 Fla. L. Weekly D726a, the Second District Court of Appeals reversed the trial court, which granted an extension of time to file the notice of election.  In Samad, the surviving spouse filed a petition to extend the time to make the election more than seven months after the decedent’s death arguing excusable neglect.  The surviving spouse relied, inter alia, on Florida Probate Rule 5.042(b), which gives the court authority to enlarge the time to perform an act “required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder.” The Second DCA held that by its own terms, Rule 5.042(b) does not apply to acts required to be done within a specified time by statute.  Because there is no other procedural rule allowing for an enlargement of time to elect to take as tenants-in-common, the Second held that the six-month deadline cannot be extended.  Based upon the ruling in Samad, the court does not have the authority to extend the time to make the election even if filed before the expiration of the deadline. This makes Fla.Stat. §732.402(2) a statute of repose and not a statute of limitation because it cannot be extended for any reason, either before or after the expiration of the deadline.

A surviving spouse needs to quickly decide whether it is in his or her best interest to elect to take a 50% interest as tenants-in-common with the decedent’s lineal descendants.  The election shall be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county where the homestead property is located.  Fla.Stat. §732.401(e) provides a sample of the notice.

 

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