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Do I Have to Leave My House to My Spouse or Children After I Die?

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As a general principle, you are free to distribute your property as you see fit via a will or trust. But in Florida law, there is a critical exception for “homestead” property, i.e., your primary residence. Article X of the Florida Constitution provides special protections and restrictions on homestead property.

The protections include an exemption from any forced sale to pay off your creditors. In other words, even after you die, your creditors cannot force your family to sell your homestead to pay off a debt. This ensures your family will not be kicked out of their home.

But this brings us to the special restrictions on homesteads. Article X also states that a homestead “is not subject to devise,” except as provided by law, if the owner is survived by a spouse or minor child. In plain English, your ability to transfer your homestead property upon death is limited as follows:

  • If you are married without children, you can only leave the homestead to your spouse.
  • If you have children, you can only leave the homestead to your children, but your spouse retains a “life estate” in the property, meaning he or she can continue to live in the house as long as they pay the bills.
  • During your lifetime, you cannot mortgage, sell, or give the homestead to anyone other than your spouse without their consent, even if your spouse is not a co-owner of the property.

Electing to Take One-Half of the Property Instead of a Life Estate

A separate law, Section 732.401 of the Florida Statutes, further explains that the surviving spouse may opt-out of the life estate and elect to simply take a “one-half interest in the homestead as a tenant in common.” The remaining half then goes to the deceased owner’s children or other descendants.

Why would a surviving spouse elect to do this? A common reason is that the widow or widower may simply not be in a position to carry the property financially. A life estate basically requires the surviving spouse to pay all of the costs to maintain the property for the benefit of the children. By electing to take a one-half interest instead, that effectively cuts the surviving spouse’s financial obligation in half.

But it is important to note there is a six-month deadline for making this election, starting from the date of the homestead owner’s death. A Florida appeals court recently issued a decision, Samad v. Pla, on this point. In this case, a widow sought an extension of time to file her election. While such extensions are permitted, the petition seeking an extension must still be filed within the six-month window. Here, the widow failed to do this–she waited until about eight months after her husband’s death–so the court ruled the petition was filed too late.

Speak with a Florida Estate Planning Lawyer Today

As you can see, Florida’s rules governing homestead property are somewhat complicated. A qualified Fort Myers estate planning attorney can answer any questions you might have regarding what happens to your home after your death. Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free consultation with a member of our estate planning team.

Sources:

flsenate.gov/Laws/Statutes/2018/732.401

2dca.org/content/download/430940/4680016/file/180709_39_03152019_08475389_i.pdf

https://www.kuhnlegal.com/what-happens-if-someone-dies-while-in-bankruptcy-proceedings/

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