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.