Can I elect to receive a life estate instead of an intestate share in Florida? | Florida Probate | FastCounsel
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Can I elect to receive a life estate instead of an intestate share in Florida?

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.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.