In 2010, the long standing homestead law in Florida changed. The old law provided that (as long as there was no pre or post nuptial agreement waiving rights) a surviving spouse was entitled to at least a life estate in the home. For instance, if a married couple lived in a home owned exclusively by the husband and the husband died, the wife was entitled to live in the house for the remainder of her life, regardless of what the husband expressed in a will or a trust document. The surviving spouse was required to pay for the upkeep and maintenance of the property during her lifetime. When the surviving spouse died, the property reverted to the husband’s children.
Although this law was intended to protect the surviving spouse, it also caused some practical problems. Some surviving spouses were financially unable to maintain the home. The decedent’s children often felt that the maintenance was inadequate and this caused strife between the spouse and the children. Selling the home was often problematic during the time period the survivor had the life estate. The new law is intended to provide financial relief for the surviving spouse, and to address some of these other problems.
Effective October 1, 2010, the surviving spouse has a choice: Keep the life estate OR become a 50% owner of the homestead property, with the decedent’s children owning the other 50%. This creates “tenants in common.” The survivor has up to six months from the date of the spouse’s death to choose either a 50% ownership or the life estate.
Once made, the choice is irrevocable. Under the new law, if the surviving spouse chooses 50% ownership, the survivor or the deceased spouse’s children may be able to force the sale of the homestead property, regardless of what the other party desires. The surviving spouse and the decedent’s children will then split the proceeds equally.
While the intent of the law is to provide relief to the surviving spouse who may find it difficult to maintain the homestead, it may create a particularly difficult situation if the surviving spouse chooses the 50% ownership and then passes away before the property is sold. If that were to happen, the surviving spouse may leave her 50% interest to her family who would then find themselves in a property partnership with the children of the first decedent.
Persons in second marriages need to carefully consider the new law. It is particularly important to consider the new law, if you were relying on the old law to effectuate your intentions.