Abandoned life estate6/15/2023 ![]() 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. Weekly D726a, the Second District Court of Appeals reversed the trial court, which granted an extension of time to file the notice of election. 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. 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. 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. ![]() 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. However, Florida law provides another option. 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. 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 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. This blog is about the descent and devise of the homestead. 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. Article X, Section 4 of the Florida Constitution defines “homestead” property. Homestead property in Florida is a complicated business. If a surviving spouse wants 50% of the homestead property, he or she needs to give notice of the election within 6 months of death – no exceptions! A SPOUSAL ELECTION TO TAKE A ONE-HALF INTEREST IN HOMESTEAD PROPERTY INSTEAD OF A LIFE ESTATE MUST BE MADE WITHIN 6 MONTHS OF THE DECEDENT’S DEATH.
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