6.3 Elective Share and Homestead Restrictions in Estates

Florida law provides robust protections for a surviving spouse, ensuring they cannot be completely disinherited by a decedent's estate plan. These protections are primarily implemented through two distinct mechanisms: the elective share, which guarantees a minimum percentage of the decedent's wealth, and constitutional homestead restrictions, which restrict the transfer of the family residence.

Florida's Elective Share

The elective share is a statutory safety net that allows a surviving spouse to reject the provisions of a deceased spouse's will and instead receive a fixed percentage of the decedent's estate. Under Florida Statutes Section 732.201, the elective share is equal to 30% of the elective estate.

The "Elective Estate" Concept

A key feature of Florida's elective share law is that the 30% calculation is not restricted to the probate estate. To prevent testators from avoiding the elective share by transferring assets into non-probate forms (such as revocable trusts or joint accounts) prior to death, Florida utilizes a broad concept known as the "elective estate" (Fla. Stat. § 732.2035).

The elective estate includes:

1. The Probate Estate: All assets subject to administration.
2. Protected Homestead: The decedent's interest in Florida homestead property.
3. Joint Accounts: The decedent's ownership share of accounts held in joint tenancy with right of survivorship or tenancy by the entirety.
4. Revocable Trusts: Any property held in a trust that the decedent had the power to revoke or modify immediately before death.
5. Retained Interest Transfers: Transfers where the decedent retained a life estate or the right to income.
6. Life Insurance: The net cash surrender value of any policy on the decedent's life owned by the decedent immediately before death.
7. Retirement Plans: The decedent's interest in pension, 401(k), and IRA accounts.
8. Recent Transfers: Certain transfers of property made within one year of the decedent’s death.

Procedure and Timing

The elective share is not automatic; the surviving spouse must affirmatively file an election. Under Florida Statutes Section 732.2135, the election must be filed on or before the earlier of:

• 6 months after the date of service of a copy of the notice of administration on the surviving spouse; or
• 2 years after the date of the decedent's death.

Once filed, the court determines the value of the elective estate and how the 30% share will be satisfied.

Satisfaction of the Elective Share

To satisfy the elective share, the law applies a specific order of abatement. First, the court applies assets already passing to the surviving spouse through the decedent's estate plan (e.g., will bequests, trust distributions, joint accounts, or insurance proceeds). If these assets total less than 30% of the elective estate, the deficiency is satisfied from other beneficiaries' shares in the elective estate, who must contribute pro rata.

Florida Homestead Restrictions

Florida's homestead laws are embedded in Article X, Section 4 of the Florida Constitution and Chapter 732 of the Florida Statutes. In the context of probate, the homestead rules provide three primary benefits: exemption from forced sale by creditors, restrictions on devise, and statutory descent rules.

To qualify as a homestead, the property must be real property owned by a natural person, up to one-half acre inside a municipality or up to 160 contiguous acres outside a municipality, and it must serve as the permanent residence of the owner or the owner's family.

Exemption from Creditors

A qualified homestead passes free of the claims of the decedent’s creditors to the decedent's surviving spouse or heirs. This exemption is highly protective; only three types of debts can force a sale of a homestead: residential mortgages, property taxes/assessments, and mechanic’s liens for work performed on the property.

Devise Restrictions

Florida law severely restricts a homeowner's ability to devise (transfer by will) their homestead property if they are survived by a spouse or minor children.

• Survived by Spouse and Minor Child: The homestead cannot be devised. Any attempt to devise the homestead is completely void, and the property descends by default.
• Survived by Spouse (No Minor Children): The homestead can only be devised to the surviving spouse in fee simple. Any attempt to devise the homestead to a third party or to place it in a trust where the spouse does not receive a fee simple interest is void.
• Survived by Minor Child (No Spouse): The homestead cannot be devised. Any devise is void.
• No Spouse and No Minor Children: The owner may devise the homestead to anyone they choose.

Descent of Homestead

If a devise of homestead is void because it violated the statutory restrictions, or if the decedent died intestate, the homestead descends under Florida Statutes Section 732.401 as follows:

1. Life Estate: The surviving spouse receives a life estate in the homestead.
2. Vested Remainder: The decedent's descendants receive a vested remainder in the homestead, per stirpes.

The Tenancy in Common Election

Recognizing that a life estate can place a heavy financial burden on a surviving spouse (who is responsible for property maintenance, taxes, and mortgage interest without the right to sell the property without consent), Florida law provides an alternative.

Within 6 months of the decedent’s death, the surviving spouse may elect to take an undivided one-half (50%) interest in the homestead as a tenant in common with the decedent's descendants, instead of a life estate.

• The election must be filed within the 6-month window and is completely irrevocable.
• Once elected, either the spouse or the descendants can file a partition action to force the sale of the home and split the proceeds 50/50. This provides the spouse with immediate liquidity.