How Does Florida Homestead Law Relate to Estate Planning?
Homes are a significant part of most people’s estates and legal approaches used in estate planning are important for passing on a homestead.
Florida Statutes contain guidelines related to homesteads that protect the rights of spouses, children and other descendants. Spouses have several legal rights to a homestead upon the death of their spouse:
- Life estate for the surviving spouse. A life estate establishes ownership of the homestead for as long as the surviving spouse is alive. A life estate is a way of ensuring that spouses still have a home to live in for the rest of their lives after losing their wife or husband. This provision in the statute for a spouse also takes precedence over a will that gives the home to surviving children.
- Right of election. A new amendment to the law allows a spouse to elect to divide the property with the children, with half going to the spouse and the other half going to the children of the deceased spouse. You have six months after your spouse’s death to make this election (with limited exceptions to the rule). Take note that, once made, the election is irrevocable. Whether to elect a 50 percent interest or a life estate is a very important decision that impacts several rights of the surviving spouse and the decedent’s descendants. The decision should not be made without the advice of estate planning lawyer in Florida.
If you owned the homestead with your spouse through tenancy by the entireties, this section of the statute does not apply. Only married couples have the right to tenancy by the entireties, which stipulates that any homestead sale must be by signature of both spouses. When one spouse dies, the homestead avoids probate and passes automatically and directly to the other spouse.
There are a variety of legalities involved with homesteads, and other factors come into play when you rent the homestead, place the home in a trust or want to obtain a homestead waiver. To protect your rights and interests, you should discuss plans for your home with an experienced estate planning lawyer in Florida.