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Right of Decedent’s Spouse to Elect Regarding Homestead

by | Dec 21, 2022 | Estate Planning, Probate |

Sometimes we see married persons who own their homestead only in their name–not including the spouse on the title. If that married person dies intestate (without a Last Will and Testament) and has no children, the homestead transfers to the surviving spouse by operation of law. But if the married person dies having children which are not common to the surviving spouse (as with a “blended family”), then, pursuant to Section 732.401, Fla. Stat., the surviving spouse has two options available regarding the homestead.

First, the surviving spouse may elect to receive a life estate in the homestead. This gives the surviving spouse the right to reside in the homestead during his or her lifetime. The remainder passes to the deceased spouse’s children. However, with a life estate, the spouse does not own the property so it cannot be sold or conveyed.

A second option is for the surviving spouse to elect to receive a one-half interest in the homestead. The other one-half interest will be owned by the decedent’s surviving children. The interests of the spouse and the children is held as tenants in common. Unlike the life estate described above, owning as a tenant in common does give the spouse an interest which can be conveyed or devised. In other words, the spouse can live in the homestead but can do little else with it.

In order for the surviving spouse to receive the one-half interest in the homestead the spouse must record a “Notice of Election” in the Official Records of the county where the homestead is located. The election must be made within 6 months after the decedent’s death and must be made during the surviving spouse’s lifetime.

The Notice of Election must be in substantially the following form:

ELECTION OF SURVIVING SPOUSE
TO TAKE A ONE-HALF INTEREST OF
DECEDENT’S INTEREST IN
HOMESTEAD PROPERTY

STATE OF ______________

COUNTY OF ___________

1. The decedent, __________, died on __________. On the date of the decedent’s death, The decedent was married to _________________, who survived the decedent.

2. At the time of the decedent’s death, the decedent owned an interest in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, which real property being in ___________ County, Florida, and described as:

(legal description of homestead property)  .

3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate.

4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney in fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election.

  (Affiant)  

Sworn to (or affirmed) and subscribed before me this   day of   (month)    (year)  , by   (affiant)  

  (Signature of Notary Public-State of Florida)  

  (Print, Type, or Stamp Commissioned Name of Notary Public)  

Personally Known OR Produced Identification

  (Type of Identification Produced)  

Because making the election has many ramifications, if is advisable to seek counsel from an attorney with knowledge and experience in estate matters. Once making the election, it is irrevocable so you want to get it right.

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