By Zana Holley Dupee, Esq.
Effective October 1, 2010, the legislature amended Florida Statute 732.401 to allow a surviving spouse to elect to take a 50% ownership interest instead of a life estate. This would only apply to situations where the spouse is receiving a life estate in the decedent’s homestead property. If the spouse elects the 50% interest, then the decedent’s children own the remaining 50% interest.
Prior to the date that the spouse makes the election, the surviving spouse has a life estate and is responsible for all of the expenses relating to ownership, such as taxes and maintenance costs. From the date that the spouse makes the election, then she is responsible to pay ½ of the ownership expenses and the children who are co-owners are responsible to pay the other ½ of the ownership expenses.
In order to make this election, the spouse must record a Notice of Election in the Official Records of the county in which the homestead property is located. The spouse must record this notice within 6 months of the date of the decedent’s death, unless extended by law. The Notice of Election must contain the following information: (1) decedent’s name and date of death; (2) surviving spouse’s name; and (3) the legal description of the homestead property.
After the spouse makes this election, the spouse and children would be entitled to the remedy of partition. Partition is a legal remedy which allows a co-owner of property to force the sale of the property and split the proceeds. Partition is not available to the holder of a life estate or the remaindermen.
This is a helpful change to Florida’s estate laws because it gives widows and widowers many more choices of how to handle their property when their spouse dies. However, the surviving spouse must make this choice carefully because the election is irrevocable. Because of the significant legal implications of this choice, it is highly recommended that you seek the counsel of a qualified attorney in the event that your spouse has recently passed away.
If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.
Comments