![]() See The New Homestead Trap: Surviving Spouses are Trapped by Life Estates They No Longer Want or Can Afford, 81 Fla. ![]() The old law created a homestead trap as first discussed by attorney Jeffrey A. The election must be filed within 6 months of the decedent’s death. 744.444(9) has been amended to authorize the spouse’s guardian or attorney-in-fact to make the election for him or her. If the surviving spouse is incapacitated, F.S. Furthermore, as a tenant-in-common, the surviving spouse is responsible for 50% of the mortgage principal, interest, taxes, and maintenance, along with the remaindermen. The new legislation would also allow for a partition action in the event that the surviving spouse seeks to sell their interest in the property. § 732.401 allow the surviving spouse to opt out of the life estate, and instead take a 50% tenancy-in-common interest in the property. Moreover, the surviving spouse cannot use a partition action to remedy this situation. The principal on any mortgage on the property would remain the responsibility of the remaindermen. This may create an economic burden when the surviving spouse cannot afford the property, because the spouse, as owner of the life estate, must pay property taxes, insurance, ordinary maintenance and mortgage interest on the property. In these instances, application of the previous statute would have the surviving spouse take a life estate in the homestead property with the remainder interest to the lineal descendants in being. Homestead properties that are improperly devised are those where the decedent is survived by a spouse and the devise is not to the surviving spouse, or where the devise is to decedent’s lineal descendants when there is a surviving spouse, absent waivers or disclaimers of surviving spouse’s homestead right. Homestead properties that can not be devised are ones where the decedent is survived by minor children. ![]() All Florida estate planning attorneys are impacted as such homestead election powers should be standard language in most durable powers of attorney and inter vivos trusts.Ī surviving spouse in Florida takes a life estate in the decedent’s homestead with a remainder to the lineal descendants then living, per stripes, for property not properly devised or which cannot be devised. Such an election must be filed within 6 months of the decedent’s death. However, all Florida probate attorneys need to know the implications of the legislation as the new law requires an analysis of whether the surviving spouse should file an “Election of Surviving Spouse to Take a One-Half Interest of Decedent’s Interest in Homestead Property.” F.S. The surviving spouse of a decedent when the decedent owned homestead property which was not properly devised or cannot be devised is impacted by this legislation. Who is Impacted by This Legislation, F.S.
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