A surviving spouse has homestead rights to property in which the husband and wife reside at the time of the death of a spouse. This is even true where the deceased spouse transferred such property by an enhanced life estate deed to others before getting married. While the enhanced life estate deed executed before marriage creates remainder interests in others (eg. children), if the property becomes the homestead during the marriage, the surviving spouse’s constitutional homestead rights will take precedence over the remainder interests in the deed.<\/p>\n\n\n\n
Florida Statutes Section \u00a7732.401(1) states “if not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”<\/p>\n\n\n\n
Florida courts have consistently held that homestead protections are designed to protect surviving spouses and cannot be defeated by technical ownership structures, unless there is a clear, written waiver of homestead rights. If the property is homestead and the surviving spouse did not execute a valid waiver, the surviving spouse will have a life estate interest in the property (or an undivided one-half interest as tenant in common if an election is made pursuant to Florida Statute Section \u00a7732.401(1).<\/p>\n\n\n\n
Fla. Stat. \u00a7732.401; Art. X, Sec. 4, Florida Constitution; In Re Estate of Johnson<\/em>, 397 So. 2d 970 (Fla. 4th<\/sup> DCA 1981); Title Standard 6.12 (Florida Bar); Johns v. Bowden<\/em>, 66 So. 155 (Fla. 1914); Clemons v. Thornton<\/em>, 993 So. 2d 1054, 1056 (Fla. 1st<\/sup> DCA 2008); HCA Gulf Coast Hosp. v. Estate of Downing<\/em>, 594 So. 2d 37 (Fla. 1st<\/sup> DCA 1991)<\/p>\n","protected":false},"excerpt":{"rendered":" A surviving spouse has homestead rights to property in which the husband and wife reside at the time of the death of a spouse. This is even true where the deceased spouse transferred such property by an enhanced life estate deed to others before getting married. While the enhanced life estate deed executed before marriage […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-466","post","type-post","status-publish","format-standard","hentry","category-what-is"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t