With Florida homestead property, what happens when a married person dies intestate and has children from a prior marriage?

When a person dies intestate in Florida leaving a spouse and lineal descendants, Florida probate law addresses what happens to homestead property.

If a married person dies in Florida owning homestead real estate in their individual name-as opposed to jointly with their spouse-an issue arises when the homestead is not devised by Will or Trust in accordance with the applicable homestead provisions of Florida law and Constitution. Fla. Stat. Section 732.401 addresses how the homestead descends in this situation and the outcome depends on whether the deceased spouse has both a surviving spouse and lineal descendants, i.e. children, grandchildren, etc. For example, if the spouse dies intestate (with no Will) and the homestead is titled only in his or her name and if the deceased person has a spouse but no lineal descendants, then the homestead goes to the surviving spouse outright. However, if the deceased person has a spouse and lineal descendants, then the surviving spouse receives a life estate in the homestead, with the remainder going to the lineal descendants. In essence, this means that the surviving spouse can live in the property during his or her lifetime and when the spouse dies, the property goes to the descendants of the first deceased spouse.

One little known option that the surviving spouse has available in this situation is to elect to receive an undivided one-half interest in the homestead as tenant-in-common with the other descendants. In making this election, the spouse must do so within six months of the decedent's death. In order to make this election, the spouse signs and records a written election form substantially in compliance with that provided in Fla. Stat. Section 732.401 (2)(e). Once the election is made, it is irrevocable and therefore it is prudent for the surviving spouse to seek legal counsel before making this decision.

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