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Florida Homestead – 6 months to get half the sale money for a widow

Uncategorized Aug 20, 2020
post about Florida Homestead – 6 months to get half the sale money for a widow

Florida Homestead – 6 months to get half the sale money for a widow

Every Florida probate lawyer from Miami to Palm Beach knows that the homestead rights of a spouse can be very, very valuable. But, did you know that one of the most valuable probate rights that a widow has must be exercised within six months of death?

That’s right. In Florida, a surviving spouse has a right to make an ELECTION to get half of the homestead sale proceeds. Therefore, if your wife or husband dies with a $5 million condo on the ocean in Sunny Isles or Aventura, you can ask for $2.5 million.

BUT, you only have 6 months to make a proper election under Florida Probate Code Section Florida Statute 732.401.

Surviving Spouse Homestead Rights in Florida

Florida Statute 732.401 explains that a surviving spouse in Florida takes a life estate in the homestead property UNLESS the surviving spouse elects to, instead, take an undivided one-half interest in the homestead as tenants in common.

This Florida rule is very important to be familiar with if you are the surviving spouse, and there is a homestead property in Miami or West Palm Beach. Would you rather be allowed to live in the property and have control of the property until you pass away, or would you rather own an undivided interest in half of the property? Owning half of the property means that you would be co-owners with the decedent’s adult children or entitled heirs. You should consider whether or not you get along with the heirs of the estate. Do you want to sell the Miami Beach property? What is best for you financially as a new widow? Ask your West Palm Beach probate lawyer to explain the pros and cons of both options in more detail.

Timing Matters in Florida Probate Court

Florida Statute 732.401 (2) says that, if a surviving spouse chooses to make the election to take an undivided one-half interest in the homestead, rather than a life estate, he or she must file that election within six months of the decedent’s death. Although there is an exception if a certain petition is filed by an attorney in fact or guardian of the property of the surviving spouse, that certain petition itself must also be filed within those six months. What happens if you decide you want the one-half interest in the Florida homestead, rather than the life estate, but you fail to file within the six months? Are you out of luck?

Samad v. Pla: Don’t Miss the Deadline!

Here, the surviving spouse in a Florida probate proceeding neither made the election to take an undivided one-half interest in the homestead nor filed a petition as described in 732.401(b) within the six-month period. At seven-and-a-half months, the surviving spouse moved for an extension of time to make the election, claiming excusable neglect. The trial court granted her request. The other party appealed. The appellate court decided that, because the surviving spouse failed to satisfy the requirements in section 732.401(2), the trial court erred as a matter of law in granting her the extension to file the election. Therefore, the Florida trial court’s decision was reversed.

To learn more about Florida Statute 732.401 and surviving spouse inheritance rights, consider reading Samad v. Pla in its entirety. If you are a surviving spouse in Florida in need of an experienced Miami or West Palm Beach inheritance lawyer, call (561) 268-0233 ext.101 for a free consultation.