Jul 122012

Article X, Section 4(c) of the Florida Constitution imposes restrictions on the transfer or devise of homestead property.  While living, a husband and wife who own homestead property may transfer an interest in this property only if both of them sign the deed, mortgage, or other conveyance.  Upon death, there are limits upon how an individual can devise homestead property that are largely dependent on who survives the decedent.

If someone attempts to devise the homestead in a manner that is not authorized by Florida law or the Florida Constitution, the Florida Statutes determine the proper manner of descent.  The statutes say that the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants who are alive at the time of the decedent’s death.

In lieu of a life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half being owned by the decedent’s descendants.  This right of election may be exercised:

  1. By the surviving spouse; or
  2. With the approval of a court having jurisdiction over the real property, by an attorney in fact or guardian of the property of the surviving spouse.  Before approving the election, the court must determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.

The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime.  A petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election must be filed within 6 months after the decedent’s death and during the surviving spouse’s lifetime.  If the petition is timely filed, the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.  Once made, the election is irrevocable.

If you have questions on the proper method to devise your homestead or are facing the possibility of making a homestead election, you may wish to contact a Florida estate planning attorney who can provide assistance.