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Detailing the descent of homestead in Florida

Questions often arise amongst people in Miami regarding what happens when a person dies without ever having made a will. The answer is that his or her assets and property are transferred to others according to the state’s rules regulating intestate succession. The general details of Florida’s intestate succession guidelines have been shared in this blog in the past, however many may wonder how such regulations treat what is often one’s most valuable asset: his or her home.

According to the Florida Probate Code, the ownership of a home (specifically, one’s homestead) transfers in the same manner as other intestate property, with the exception being cases where one is survived by a spouse and one or more descendants. In that case, the spouse is given a life estate in the homestead, with the descendants being given a vested remainder per stirpes (in equal shares).

The Legal Information Institute of the Cornell University Law School describes a life estate as being interest in land that does not go beyond the life of the holder. In this particular case, one’s spouse retains interest in the homestead, yet he or she cannot transfer it to another after his or her death due to the fact that decedent’s descendants have a remainder. Thus, even if the spouse sells the homestead during his or her lifetime, full ownership off it is divided up amongst the descendants after he or she is gone.

A surviving spouse can opt out of this option by electing to instead take an undivided one-half interest in the homestead, with the decedent’s descendants retaining the other half. Such an election must be made within six months of the decedent’s death and still within the spouse’s lifetime. 

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