Received some great advice recently, but I have another question. My father in-law passed away four months ago in FL with the home in his name only. Originally our attorney told us that his widow (my husband's step mother in-law) due to her receiving a substantial amount of money with joint bank accounts, CD's and Roth's, that she basically would not have any rights to the home as her portion would be more than half of the estate. Well through our own research we saw that this was not the case, and the attorney confirmed he was mistaken. The money would not enter into the equation regarding the estate, since thus far all of the money is going to her anyway outside of the probate process. And that would only come into play if she had been cut out of a Will, and she decided to do the elective share to the spouse (30%). What we need to know is there a difference between this type of elective share and the 50 / 50 elective share that must be filed within 6 months for Homestead property, if the widow does not want to do the life estate? They are making it sound one in same. (His SMIL is 90, no longer lives in the home, the house is a disaster, we want to fix up, and he is the only heir)
Please consult a board certified estate attorney. You are receiving questionable advice from others. A surviving spouse is entitled to a life estate in a residence, with remainder to decedent's children. The widow can take a % of the residence if she does not want to live in the residence.
Homestead and elective share are two different animals. Elective share, in some states called the spousal share, is an election that a surviving spouse can make to take 30% of the elective estate in lieu of what the surviving spouse is left in the deceased spouse's estate. This usually means that the deceased spouse left little or nothing to the surviving spouse in a will or trust. The elective share would be satisfied by assets of the probate estate as well as certain assets not in the probate estate. Homestead is not included in the elective share in any way. This election must be made within the earlier of 6 months from the time that Notice of Administration is served on the surviving spouse or 2 years after the date of death. Review Fla.Stat. Sects.732.201-732-228 for a full explanation of elective share (but be aware, a lot of experienced attorneys do not even fully understand elective share law).
Homestead is a right that a surviving spouse has to a life estate in the decedent's homestead property. Life estate means that the surviving spouse gets the use of the property for the rest of his/her life and then it goes to the decedent's children. During the surviving spouse's lifetime, he/she cannot sell it or get a mortgage on it, etc., without the children joining in. As an alternative, a surviving spouse can choose to take 1/2 of the homestead property as tenants in common with the decedent's children having the other 1/2. This means that the surviving spouse owns half of the property outright and can do whatever he/she wants to with it - with certain constraints imposed by the fact that he/she does not own the entire property (e.g, who wants to buy 1/2 a house makes it hard to sell). This election must be made within 6 months from date of death. Review Fla.Stat. Sect. 732.401 for further information.
As to the homestead, the surviving spouse automatically receives a life estate, but can elect a 50% interest. That election is entirely independent of any probate issues. Legally, the homestead isn't even a probate asset as the title passes automatically as a matter of law. Although not technically a probate asset, the probate court still becomes involved to a limited extent in some of the homestead issues.
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