In Florida, a surviving spouse has the right to elect to take a portion of the deceased spouse’s homestead property as a tenancy in common with the deceased spouse’s children, instead of taking a life estate in the entire property. There are so many statutes on this (Check them out HERE) so I’ll try to summarize as best as possible. If you have a particular situation, it’s always best to schedule a consult.
This election is known as the “elective share,” and it allows a surviving spouse to receive a share of the deceased spouse’s estate, including homestead property, even if the deceased spouse’s will provides for a smaller share or no share at all. The elective share is intended to provide some protection for a surviving spouse who may have been disinherited or received a smaller share of the estate than they expected.
Under Florida law, a surviving spouse may elect to take 30% of the deceased spouse’s elective estate, which includes all property that would be subject to probate, including homestead property. However, the surviving spouse must make the election within a certain time frame after the deceased spouse’s death, and the election must be made in writing and filed with the court.
If a surviving spouse elects to take a tenancy in common with the deceased spouse’s children for homestead property, the surviving spouse would become a co-owner of the property with the children, and would have the right to possess and use the property in proportion to their ownership share. The surviving spouse would also have the right to sell or transfer their share of the property, subject to any restrictions in the tenancy in common agreement.
It’s also worth noting that if a surviving spouse waives the right to take an elective share in a prenuptial agreement or postnuptial agreement, that waiver is binding and enforceable.
It’s important to note that the elective share and tenancy in common rules can be complex, and may vary depending on the specific circumstances of the case. If you have questions about the elective share or tenancy in common rules for homestead property in Florida, it’s best to consult with a knowledgeable attorney who can advise you on the specific laws and regulations that apply to your situation.
