Written by: Kate L. Wakeman, Esq.

In Florida, if a decedent is survived by a spouse and one or more descendants, the surviving spouse receives a life estate in the decedent’s homestead property. In other words, the surviving spouse will be able to remain in the home for the remainder of his or her lifetime and upon his or her death, the property interest passes to the first decedent spouse’s descendants. However, if the surviving spouse wishes to obtain an undivided one-half interest in the decedent’s homestead as a tenant in common with the decedent’s descendants, the surviving spouse must make an election within six months of the decedent’s death. That is, if the surviving spouse wants to receive an ownership interest in the homestead property, he or she must submit a pleading to the Court advising that he or she is choosing to exercise his or her right of election. Additionally, the surviving spouse’s attorney in fact or guardian of property can make the election on behalf of the surviving spouse after obtaining court approval.

Earlier this year, a Florida court clarified the rule regarding spousal election stated in Florida Statutes § 732.401(2)(b) in the case Samad v. Pla, 267 So.3d 476 (Fla. 2d DCA 2019). Previously, it was believed that a surviving spouse could petition the court for an extension of time to make the election after the six-month window expired based on excusable neglect under Florida Probate Rule 5.042(b). Florida Probate Rule 5.042(b) states, in part, that: “when an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder, for cause shown the court at any time in its discretion . . . (2) on motion made and notice, after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect.”

In Samad v. Pla, a surviving spouse failed to make the election within the six-month window following the decedent’s death. Seven-and-a-half months after her husband’s death, the surviving spouse filed for an extension of time under Florida Probate Rule 5.042(b), claiming excusable neglect in failing to file within six months of his death. The trial court granted the extension of time, but that decision was appealed. The appellate court ultimately found that Florida Probate Rule 5.042(b) does not apply when a surviving spouse fails to make the election within six months following the decedent’s death because that six-month window is established by Florida statute and therefore cannot be extended under Florida Probate Rule 5.042(b).

The moral of the story here: if your spouse dies owning homestead property in his or her name alone, you should contact an attorney as soon as possible to discuss your options. Waiting too long after your spouse dies may result in permanent consequences regarding the ownership of your home.

If you would like advice on the right of election, or any other elder law issue, please contact our office at 407-422-3017 to schedule a consultation with one of our attorneys.