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No tears were shed this year when the Florida Legislature finally – after far too many years – revised that portion of the homestead law that competed for the “worst idea” among all Florida laws. That would be sec. 732.401, F.S.., which stated that if the homestead were owned only by the married person who died, without a valid Will leaving the homestead to his or her spouse, the surviving spouse got a life estate in the homestead and all children of the owner got the “remainder interest”.
Practicing lawyers know that a law is stupidly written when the more you try to describe the situation to an intelligent surviving spouse, the worse it gets:
"Yes, you have to make the payments on your husband’s mortgage, but no, you cannot take advantage of low interest rates by refinancing unless all remainder owners (children or stepchildren) agree to sign the mortgage as well.”
“Sure, you can force a sale, by going to court in a partition action, but get this – I can’t tell you how much of the sales proceeds you’ll get and how much his children will get, because you don’t own one-half or one-third. You own a life estate. Let’s see – how old are you? What is your health like? Let me do some expensive research to give you an opinion and no guarantee. How does that sound?”
This statute has been lambasted for years. The title of a Florida Bar Journal article by Jeffrey Baskies in 2007 tells it all: “The New Homestead Trap: Surviving Spouses Are Trapped by Life Estates They No Longer Want or Can Afford.”
Finally, in Sec. 7, Ch. 2010-132, Laws of Florida, effective October 1, 2010, the law now provides an “out” to the surviving spouse from this horrible form of ownership. The surviving spouse may elect, within 6 months of the date of death, to take title to an undivided ½ interest in the homestead with the otherwise remainder owners, as tenants in common. The new statute provides a form for the election, and once made, the election is irrevocable. The election is recorded in the public records and must include the legal description of the property. It took a while, but at least now there’s relief to those in this historically sticky situation.