New Florida Homestead Law Details
On May 27th, Florida Governor Crist signed a bill which added a new dimension to the way a homesteaded property may pass to a surviving spouse. Under the current law, if a Florida resident died leaving a surviving spouse and adult children, the property had to pass outright to the surviving spouse without any strings attached. However, this distribution of the homestead was subject to a prenuptial agreement, postnuptial agreement. If there was no marital agreement in place and the homestead was distributed without 100% going to the surviving spouse, the surviving spouse would get a life estate in the property with the children receiving the remainder. Therefore, if the surviving spouse ever wanted to sell the home, the children would also have to sign off on the sale. Further, while the surviving spouse is living in the homestead during the life estate, they would be solely responsible for the upkeep of the property.
Under the new law, in situations where the surviving spouse would only have a life estate in the home, the surviving spouse may make an election to take a 50% interest in the homestead as tenant in common with the children. This election must be made within 6 months after the decedent's death and during the surviving spouse's lifetime and is irrevocable. The upside to this election is that if the surviving spouse is not interested in keeping the home, they could force a sale of the home through a partition action in the court system. This option is not available if the surviving spouse only has a life estate.
For more information on the new homestead election, please consult a Florida estate planning attorney.
