Amendments to the Florida Probate Code

The Supreme Court of Florida has adopted amendments to the Florida Probate Code effective on January 1, 2011, at 12:01 a.m. Significant changes were made to Section 732.401, Florida Statutes and will effect the way homestead property is inherited by surviving spouses. For instance, prior to the changes, if a resident of Fort Lauderdale, Florida died and was survived by a spouse and one or more children, the surviving spouse took a life estate in the homestead, and the blood relatives of the deceased would receive the homestead upon the death of the surviving spouse. A life estate means that the surviving spouse has the right to use the homestead property for the duration of his/her life, but upon the death of the spouse, the homestead belongs to deceased’s blood relatives. Additionally, the surviving spouse who has a life estate is responsible for the costs of maintaining the property.

Upon taking a life estate in the homestead property, a spouse may be confronted with new economic duties, such as property taxes, insurance, ordinary maintenance, and mortgage interest. These may be expenses that the surviving spouse cannot afford. In response to these new found financial responsibilities, some practitioners attempted to use disclaimers, a process by which the surviving spouse essentially declines to accept the homestead property, to avoid inheriting a life estate. However, the courts reached inconsistent results.

The adopted amendments to the Florida Probate Rules now provide that, instead of a life estate, a surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common. A “tenant” is the legal term for co-owner of property. If the surviving spouse chose to take a tenancy in common, instead of a life estate, the spouse would possess the property with someone else, in this case, the blood relatives of the deceased. A tenancy in common essentially means that two or more people (the surviving spouse AND the blood relatives of the deceased) would co-own the homestead property.

If the surviving spouse chooses to take a tenancy in common interest, the expenses of the homestead can be shared by the co-owners. Additionally, in a tenancy in common, unlike an interest in a life estate, the surviving spouse has the option to utilize partition procedures. Partition procedures, under Chapter 64, are not available to life tenants. If the surviving spouse takes a tenancy in common interest and files an action for partition, the homestead will be sold, and one half of the net proceeds of the partition action will be payable to the surviving spouse. The balance of the partition proceeds will be payable to the decedent’s blood relatives that were alive at the time of the decedent’s death.

If you or someone you know lives in the Broward, Miami-Dade, or Palm Beach area, and believe that you have rights to estate property and require an experienced attorney to help you determine your rights and receive your proper share of the estate. Please feel free to contact the probate litigation team at Chepenik Trushin LLP for an initial consultation.