What happens if your parent remarries, their new spouse moves into their house to live with them, and then your parent dies? Who gets the house? Is it the children, or your parent’s new spouse?
There used to be a single answer to this dilemma: A Life Estate. According to Statute 732.401(1), a surviving spouse may take a life estate in the property, which means they will be able to live in the homestead property as long as they live. Following their death, possession will revert to the descendants of the first spouse.
However, last year, a new subdivision was added, which gives the surviving spouse more options. Florida Statute 732.401(2) states: “In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death.” In simpler terms, this means that a spouse may elect to own one-half of the property, and the owner’s descendants would own the other half. This gives the spouse the option to take partial ownership, something they could pass on in their own estate, allowing a spouse more options than they previously had.
In order for a spouse to do this, they must retain an attorney and file a petition with the court, within six months of their spouse’s death. However, if they choose to forego this option to take a life estate in the property, instead, they don’t have to do anything.
Remember, this process only applies to a homestead property that the decedent solely owned. It does not apply to any properties the decedent owned in joint tenancy with rights of survivorship. For more information on this process, contact our probate attorneys today.