In Florida, the homestead election allows a surviving spouse to choose between two options regarding the decedent’s homestead property:
- Life Estate: The default provision grants the surviving spouse a life estate in the homestead property. This means the spouse can live in the property for the remainder of their life.
- Elective Share: Alternatively, the surviving spouse can elect to take an undivided one-half interest in the homestead property. The remaining half interest would pass to the decedent’s descendants.
Critical Deadline for Election
According to Florida law, specifically Fla. Stat. §732.401(2), the surviving spouse must make this election by filing a notice in the circuit court where the estate is being administered. The election must be filed within six months of the decedent’s death, and it must be made during the surviving spouse’s lifetime.
Consequences of Missing the Deadline
If the surviving spouse does not file the election within the six-month period, they will automatically receive a life estate in the homestead property. This life estate ends upon the spouse’s death, and the property then passes to the decedent’s heirs. Missing this deadline forfeits the right to claim a one-half interest in the property.
Practical Steps for Surviving Spouses
- Act Quickly: Since the deadline is strict, surviving spouses should consult with an estate attorney soon after the decedent’s passing to explore their options.
- File the Required Documents: Ensure the notice of election is filed in the appropriate circuit court within the six-month timeframe.
Understanding the homestead election process and acting within the required deadlines is crucial to protecting your rights in the homestead property.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.