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A Surviving Spouse’s Decision on Homestead

On Behalf of | Jan 3, 2020 | Probate |

Tom and Cathy (an imaginary couple) are married and have no children together. Tom has two adult children from a prior marriage; Cathy has no children. The couple reside in a Florida home which Tom owned before they got married. As a result, title to the home is only in Tom’s name. Sadly, Tom dies unexpectedly of a heart-attack. At the time of his death, Tom had no Last Will and Testament. Cathy goes to see an estate attorney to find out about her rights regarding the home she and Tom had lived in for over ten years–she leaves in shock!

When a married person dies intestate (without a Will) and when that person owns their primary residence in their sole name, Florida law controls what happens to the home. The surviving spouse has some protection, but it is limited. Section 732.401, Fla. Stat. provides that when the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants per stirpes. A life estate allows the person to live in the home but they have no real ownership.

So in the case of Tom and Cathy, on Tom’s death, Cathy can stay in the home during her lifetime–but she can never sell the home since she only has a life estate. Ultimately, Tom’s children get the home. If Cathy moves out of the home, she essentially gets nothing. This places significant limitations on Cathy since she may want to move after Tom’s death. Even if she stays in the home, any funds she expends on the home (such as for taxes, insurance, maintenance, repairs, etc) will be lost.

However, Section 732.401 offers a viable alternative. The statute provides that:

In lieu of a life estate…the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

In the above example, Cathy could elect to receive a one-half interest in the home with the other one-half being owned by Tom’s two children. Their ownership interest would be held by the three of them as tenants-in-common. While not ideal, this would at least provide that if the house is sold, Cathy would receive her one-half share of the proceeds.

In order to elect to receive the one-half interest rather than the life estate, Cathy would have to make the election within six months of Tom’s death. If not timely elected, the right is lost and Cathy’s only interest in the home would be as a life estate.

Making the decision of whether to receive the life estate or to elect to receive the one-half interest requires the advice of an experienced estate attorney. A surviving spouse should seek immediate legal counsel on this issue.


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