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A Life Estate the Spouse Can’t Afford

October 7, 2022


A Life Estate the Spouse Can’t Afford: Florida Homestead Trap Cured by New Law


A surviving spouse in Florida takes a life estate in the decedent’s homestead with a remainder to the lineal descendants then living, per stripes, for property not properly devised or which cannot be devised. Homestead properties that cannot be devised are ones where the decedent is survived by minor children. Homestead properties that are improperly devised are those where the decedent is survived by a spouse and the devise is not to the surviving spouse, or where the devise is to decedent’s lineal descendants when there is a surviving spouse, absent waivers or disclaimers of surviving spouse’s homestead right. In these instances, application of the previous statute would have the surviving spouse take a life estate in the homestead property with the remainder interest to the lineal descendants in being. This may create an economic burden when the surviving spouse cannot afford the property, because the spouse, as owner of the life estate, must pay property taxes, insurance, ordinary maintenance and mortgage interest on the property. The principal on any mortgage on the property would remain the responsibility of the remaindermen. Moreover, the surviving spouse cannot use a partition action to remedy this situation.

The new legislative changes to Section 732.401 of the Florida Statues allow the surviving spouse to opt out of the life estate, and instead take a 50% tenancy-in-common interest in the property. The new legislation would also allow for a partition action in the event that the surviving spouse seeks to sell their interest in the property. Furthermore, as a tenant-in-common, the surviving spouse is responsible for 50% of the mortgage principal, interest, taxes, and maintenance, along with the remaindermen. If the surviving spouse is incapacitated, Section 744.444(9) of the Florida Statues has been amended to authorize the spouse’s guardian or attorney-in-fact to make the election for him or her. The new law requires an analysis of whether the surviving spouse should file an “Election of Surviving Spouse to Take a One-Half Interest of Decedent’s Interest in Homestead Property.” F.S. §732.401(2)(e). The election must be filed within 6 months of the decedent’s death.


The old law created a homestead trap as first discussed by attorney Jeffrey A. Baskies in a 2007 Florida Bar Journal article. See The New Homestead Trap: Surviving Spouses are Trapped by Life Estates They No Longer Want or Can Afford, 81 Fla. Bar J. 69 (June, 2007). Florida has had a 3% cap on property taxes for homesteads for many years. While many have benefited from this cap, persons who have purchased within the last few years may have property where the tax base is out of line with the fair market value of the property. If this has not been an issue for homestead owners then more than likely they are feeling the squeeze in the form of insurance premium increases. Insurance costs for everyone have increased as much as several hundred per cent. Here is where the surviving spouses are trapped. A surviving spouse who wants to move out of their current property to another within the state fear moving because to do so may result in significantly increased property taxes. On the flip side, remaining in their homestead property after decedent’s death, with only a life estate, may cause other financial burdens the surviving spouse also can’t afford.

As the life tenant, the spouse has a duty to the remaindermen to pay property taxes, the interest portion of mortgage payments, insurance, and ordinary repairs. The decedent’s descendants, as the remaindermen, are responsible for paying the principal portion of the mortgage payments, and to make extraordinary repairs. This creates a difficult economic partnership, especially when the decedent’s descendants are not children of the surviving spouse. Often the surviving spouse cannot afford the obligations of the life estate. Other times, the remainder beneficiaries cannot.

The new changes to Section 732.401 of the Florida Statues give the surviving spouse flexibility by providing an alternative form of ownership in the homestead property. This election would function similar to the elective share election (see F.S. § 732.201) and allow a surviving spouse to elect between a life estate interest or tenancy in common interest.  If the surviving spouse elects to take a tenancy in common interest, either the spouse or the descendants of the decedent could then force a partition of the property. This partition remedy was previously not available.

Take Away Points

  1. Probate attorneys must now analyze whether the surviving spouse should file election to take a tenancy in common interest within 6 months of the decedent’s death.
  2. Estate planning attorneys should draft homestead election powers in most durable powers of attorney and inter vivos trusts.
  3. In analyzing whether the surviving spouse should waive the life estate and elect tenancy-in-common, note that one potential downside to such election is that as tenant in common, the surviving spouse is now responsible for ½ of the mortgage principal and ½ of the interest; whereas without the waiver the surviving spouse is responsible for payment of only the interest.  Depending on the age and structure of the mortgage, this could be a positive or negative for the surviving spouse.


The amendments to Section 732.401 of the Florida Statues have widespread implications. For surviving spouses, it will be important to analyze whether to retain the life estate interest or to elect to take a one-half tenant-in-common interest by filing the appropriate election notice. For attorneys, it will be important to draft estate planning documents to allow for the election. For a more detailed explanation the amendments to F.S. § 732.401, see White Paper, HB 1237, Sections 7 and 16.

For more information, contact Florida Probates at or