Disclaimer: This is not legal advice. Consult an attorney for advice tailored to your situation.
Detailed Answer
Under Florida law, the option to take a life estate rather than an intestate share applies only to a surviving spouse in certain circumstances. Florida’s Constitution and statutes outline when a spouse may accept homestead rights or elect a share of the estate. Other heirs cannot elect a life estate in lieu of their intestate share.
Surviving Spouse and Homestead Rights
Article X, Section 4 of the Florida Constitution protects the homestead. If the decedent dies without a will and owned homestead property, the surviving spouse may receive a life estate in that property, with the remainder passing to descendants. In some cases, the spouse may receive fee simple title.
Link: Florida Constitution Art. X, §4
Elective Share vs. Homestead Option
Florida Statutes section 732.201 grants a surviving spouse an elective share equal to 30% of the “elective estate.” By choosing the elective share, the spouse waives certain homestead rights, exempt property, and allowances under F.S. §732.402.
Link: F.S. §732.201
When You Cannot Elect a Life Estate
Only a surviving spouse has the constitutional right to homestead allocations or life estates. Other heirs—children, parents, siblings—cannot elect a life estate instead of their intestate shares. They receive their shares per F.S. §732.102 and F.S. §732.103.
Hypothetical Example
Imagine a decedent dies intestate, owning a homestead valued at $200,000 and other assets worth $100,000. The decedent leaves a surviving spouse and two adult children. The spouse can either:
- Accept a life estate in the homestead (valued at $200,000) plus one-half of the remainder to the children at the spouse’s death; or
- Elect the 30% elective share of the entire estate (30% of $300,000 = $90,000), plus exempt property and allowances.
The spouse cannot take both options. Other heirs divide the remaining estate under F.S. §732.102.
Helpful Hints
- Only a surviving spouse has a right to a life estate in homestead property.
- Weigh homestead options against the statutory 30% elective share.
- Understand that accepting an elective share often cancels other allowances like exempt property and family allowance.
- Consult F.S. Chapters 732 and the Florida Constitution Art. X, §4 for details.
- Consider obtaining a qualified probate attorney to review your options.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.