There is strong public interest to protect a Florida home on behalf of the family. If a person is survived by spouse and/or children, title to their homestead property automatically passes to the spouse and/or children upon death, even if a will or trust directs otherwise.

If the survivors include a spouse and children, the spouse will receive a life estate interest in property and the children will receive a remainder ownership interest. If there are no surviving children, the spouse receives full ownership of the family home upon death.

A life estate interest means the spouse will have rights to the property during his or her lifetime, including, the right to occupy the property, rent the property, and/or sell the “life estate” interest. Upon the spouse’s death, complete title to the property passes to the children.

Although a life tenant can sell their life estate, there is not much of a market to buy a life estate because it can unexpectedly terminate upon the spouse’s death. In order to sell and transfer title to the family home, the spouse would have to have the consent of the children. To some spouses this may seem like an unfair deal, but there is good news as Florida law was recently amended in 2011 to provide spouses an alternative choice to receiving a limited life estate interest.

Florida law now provides a surviving spouse the right to choose a 50% interest in family home, as a tenant in common, in lieu of a life estate. A tenancy in common, unlike a life estate, provides the spouse with the ability to sell and/or transfer title to 50% of the property. Because many spouses have no interest in owning a limited property interest or for other reasons cannot afford to maintain the home, electing a 50% interest in the proceeds may be a viable option. If a surviving wife or husband wants to receive a 50% interest, he or she must notify the court in writing within six months of death. A failure to file such an election within the deadline and within the surviving spouse’s lifetime will result in a waiver of such right.

Ms. Rountree has dealt with a variety of spousal right issues in probate proceedings. She has successfully litigated and settled elective share, homestead, and family allowance disputes on behalf of her clients. Shannon L. Rountree, P.A. offers services to represent spouses and fiduciaries in connection with intestate share, elective share, homestead, family allowance, and exempt property claims.

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