Florida elective share and homestead rights

For those readers who are unfamiliar with the term “elective share,” it is basically the gender-neutral successor to the “dower and curtesy” which was abolished in Florida in 1975. Since their initial passing, the Florida Legislature has revised the elective share laws several times, each time making them more expansive to ensure that a surviving spouse will not be completely disinherited. As it currently stands, the elective share allows a surviving spouse to elect to take thirty percent (30%) of the decedent’s elective estate (see footnote 1), in lieu of whatever they would have received under the decedent’s will or trust. In addition to the elective share, the Florida Homestead Law grants a surviving spouse certain rights to the decedent’s homestead property. At a minimum, the surviving spouse is entitled to receive a life estate in the homestead, which can be converted to a one-half interest as a tenant in common if the surviving spouse makes the election within 6 months of the decedent’s death. The decedent’s children take the remainder interest. If, however, the decedent had no descendants whatsoever, the surviving spouse receives the entire homestead property. Prior to the enactment of CS/CS/SB 724, homestead property was one of very few assets not included in the valuation of the elective estate. This new law changes that. Unless the surviving spouse wives his/her homestead rights, CS/CS/SB 724 expressly provides that the decedent’s protected homestead shall be included in the elective estate. It also provides for different valuations depending on the interest that the surviving spouse would have in the homestead, i.e. one-half of the date-of-death fair market value in the case of a life estate, or the entire date-of-death fair market value in the case of a fee simple interest. Also prior to the new law, the surviving spouse was required to file his or her election with the court either within 6 months of being served with the Letters of Administration or within 2 years of the death of the surviving spouse, whichever was earlier. The surviving spouse could also petition the court for an extension of time to make the election, but the petition had to be filed within these same timeframes. The new law does not change the two-year maximum, but it does allow the surviving spouse to move for an extension within 40 days of the termination of any proceeding which affects the amount the spouse is entitled to receive under Section 732.2075(1), even if this occurs after the 6 months of service of the Letters of Administration.

Bill: My father recently passed and his will was read and in it, he left half of his house to me, but he lived in the house with his second wife who is still alive. What happens now?

Attorney Tom Olsen: Is it in Florida?

Bill: Yes.

Attorney Tom Olsen: Here in Florida, in spite of what your dad's will says that I leave my home to my son, his wife automatically has rights to the home under Florida's Elective Share law and her right will be-- She'll have two choices, one is to take a life estate, the right to live in that home for the rest of her life, and only upon then, would it go to you, or two is, she would have a right to claim a one-half interest in that home, so she would own one half and you would own one half. Now, that's assuming-

Bill: Is something put on file? I'm assuming she's going to live there. Her and I get along great. I'm assuming she's going to live there until she passes.

Attorney Tom Olsen: When you do is probate, you're going to be obligated to give her a notice of this probate by certified mail. You are not obligated to tell her that she has an elective share right under Florida law. That's up to her to figure that out. Then if she wants to pursue her elective share right to live in that home or claim a one-half interest, she'll have to file that elective share in the probate proceeding.

Bill: Now, the will was read, the papers are filed, and then I'll be notified of a probate hearing?

Attorney Tom Olsen: I assume you're the executor of the estate, Bill. Is that right?

Bill: Yes.

Attorney Tom Olsen: You hired an attorney, you filed a probate. Just make sure that a copy of that probate pleading is going to her by certified mail, and then she's got a period of time in which to file an elective share in that probate, or she'll waive her right to an elective share. Bill, all this is based on the assumption that your father did not have a prenuptial agreement or a post-nuptial agreement with her.