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Julie Garber

Florida Lawmakers Grant Relief to Surviving Spouses Stuck With Life Estates in Protected Homesteads

By June 7, 2010

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Florida residents take note - Florida lawmakers have amended Florida Statute 732.401 to implement sweeping changes to Florida's homestead laws with regard to descent and distribution of a primary homestead residence.

Under current law a Florida resident who is survived by a spouse and adult children must leave his or her primary homestead residence to the surviving spouse, outright and with no strings attached, unless the surviving spouse has waived the right to inherit the homestead in a prenuptial or postnuptial agreement. If the couple has not entered into a prenuptial or postnuptial agreement and the surviving spouse is left anything less than 100% of the homestead, then Florida law requires that the surviving spouse will receive a life estate in the property and the children will receive the remainder. The end result is that the surviving spouse cannot sell the property without the consent of the children and, furthermore, cannot force the children to agree to sell the property through a partition action. This also means that for the remainder of his or her lifetime the surviving spouse will be stuck with paying all of the bills required to properly maintain the homestead, including all property taxes and assessments, necessary repairs, and insurance.

In order to give Florida surviving spouses relief from what can become an onerous burden, amended Florida statute 732.401 gives a surviving spouse left with a life estate in the homestead the option to take a 50% tenant in common interest in the property instead of a life estate which, in turn, will give the surviving spouse the right to force the sale of the property through a partition action. The new law goes into effect for deaths occurring on or after October 1, 2010.

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