How can Florida homestead law affect estate distribution?
A Closer Look at Florida Homestead Statutes
According to Florida Statute 732.401, for example, if the deceased is survived by at least one descendant and a spouse, the surviving spouse will be entitled to a life estate in the home, and a vested remainder will go to the descendants. This can be a trap. If you deed your house to child A (assume you have two children), but you are survived by a spouse, then under this statute your spouse takes a life estate and the remainder interest in the homestead passes to your two children equally - oops and a possible malpractice action against the estate planning attorney.
Based on that same statute, the surviving spouse can elect to take a 50% interest as a tenant in common in the property rather than a life estate. This would give that spouse some ownership interest, allowing him or her to set in motion the process of selling the property. Consequently, if the home is sold, that spouse will typically be entitled to 50% of the proceeds.
The aforementioned election can be exercised by the surviving spouse or, with a court's approval, an attorney in fact or guardian of the surviving spouse's property. Before the election can be approved, however, the court must decide if the election will be in the best interests of the surviving spouse.
It's obvious that Florida Homestead statutes are very complex and may be difficult to understand if you don't handle homestead cases on a daily basis. To ensure that your legal rights are protected, you should discuss any concerns you may have with a Fort Myers, Florida attorney.Top of FormBottom of Form
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Fort Myers estate planning attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.