The surviving spouse may take the homestead as tenants in common rather than as a life estate if decedent tries to disinherit the surviving spouse in his or her will or trust. (This can amount to a huge boon to the step-children of the deceased person if the surviving spouse is elderly or also this can harm the surviving spouse if children of the deceased person pursue court process to force the sale of the home.)
Section 7. Section 732.401, Florida Statutes, is amended to read:
732.401 Descent of homestead.—
(1) If not devised as authorized permitted by law and the Florida
constitution, the homestead shall descend in the same manner as other
intestate property; but if the decedent is survived by a spouse and one or
more descendants, the surviving spouse shall take a life estate in the
homestead, with a vested remainder to the descendants in being at the time
of the decedent’s death per stirpes.
(2) In lieu of a life estate under subsection (1), the surviving spouse may
elect to take an undivided one-half interest in the homestead as a tenant in
common, with the remaining undivided one-half interest vesting in the
decedent’s descendants in being at the time of the decedent’s death, per
stirpes.
(a) The right of election may be exercised:
1. By the surviving spouse; or
2. With the approval of a court having jurisdiction of the real property, by
an attorney in fact or guardian of the property of the surviving spouse. Before
approving the election, the court shall determine that the election is in the
best interests of the surviving spouse during the spouse’s probable lifetime.
(b) The election must be made within 6 months after the decedent’s death
and during the surviving spouse’s lifetime. The time for making the election
may not be extended except as provided in paragraph (c).
(c) A petition by an attorney in fact or guardian of the property for
approval to make the election tolls the time for making the election until 6
months after the decedent’s death or 30 days after the rendition of an order
authorizing the election, whichever occurs last.
(d) Once made, the election is irrevocable.
(e) The election shall be made by filing a notice of election containing the
legal description of the homestead property for recording in the official record
books of the county or counties where the homestead property is located. The
notice must be in substantially the following form:
