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Florida Probate Questions Answered: What about Homestead Property?

Homestead Law

Florida Probate

Florida law recently changed in October, 2010 with respect to how a homestead passes from the decedent to his or her surviving spouse and descendants.  Under the old law, if the house was solely in the name of the decedent who was survived by a spouse, the spouse received a life estate in the house (and all the responsibilities that go along with maintaining the house), with the remainder interest to the decedent’s descendants.

Under the new law which is effective for all deaths after October 1, 2010, the surviving spouse can either take a life estate in the house, or elect to take a 50% share of the property as tenants in common with the decedent’s children.  The surviving spouse, as a 50% owner as tenant in common, will have to pay for 50% of the taxes and upkeep on the property.  This also means that the either the surviving spouse or the children could force a sale of the house and the surviving spouse would be entitled to 50% of the proceeds.  The surviving spouse has six months from decedent’s date of death to file the election to take 50 percent. To learn more about Florida Probate in respect to Florida Homestead Laws, please contact the Law Offices of Laurie Ohall.

Laurie Ohall

Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon (Tampa), Florida. Ms. Ohall is a sought after expert in the area of elder law, probate, estate planning, special needs planning and guardianship. You can find her on twitter at @ohalllaw,  LinkedIn, Facebook , and Google +.



  • Ron

    What if the spouse chooses the life estate option, then later sells the property?

    • Laurie Ohall


      If a spouse chooses the life estate option, they get just that – a life estate. The spouse will not have the right to sell the property. They have a duty to maintain it, pay the taxes and insurance and a portion of the mortgage (if there is any). If the spouse opts to take a half interest in the homestead (the law after October 1, 2010), THEN he or she would be able to sell. However, if the other beneficiaries refuse to agree, the spouse may have to institute a partition action to do so.

      ~Laurie Ohall

  • John McLoughlin

    I am the sole member of an LLC. If I set up an Operating Agreement to list my sole beneficary will I avoid probate?


    • Laurie Ohall

      The only way to avoid probate of an LLC is to either, own the interest/units jointly with someone, gift interest/units to an individual during your lifetime, or assign the LLC interest to your trust, all of which would avoid probate. The operating agreement dictates how the LLC will operate and how members may hold interest, but stating in the operating agreement that you want a particular individual to have your interest will not avoid probate. This is not something that should be handled without understanding the tax ramifications and it would be a good idea for you to discuss this with your CPA or an estate planning attorney.

  • robert guth

    Hi my mom recently passed away and her home is homesteaded. my question is her current husband decided to move out when she became ill and changed his address to another address. Is he intitled to my moms house? They were still legally married but the home was solely in her name and she owned it before they were married. They were married for around 15 years. I really do not want to lose my moms house I am 43 years old and I grew up in that home. Do I have any legal rights to the house can you help?

    • Laurie Ohall

      Hi Robert,

      All cases are different. To make a determination for your best course of action, it would be wise to contact my office for a free phone consultation at (813) 438-8503. I look forward to hearing from you soon.

  • Marie

    My mother died and her estate is been probated. An order of homestead was signed by the judge passing the homestead property to me and my siblings. My sister wants to file a partition action. Should this be done in the probate court??

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