Surviving Spouse in Florida Probate: Tenant-In-Common Election and Pretermitted Spouse

In times past, the only option most surviving spouses would have under Florida probate law would be to inherit a life estate possessory interest from their deceased spouse. However, today surviving spouses in Florida are afforded a choice – a tenant in common election – that we will briefly discuss in the following article. For more specific and tailored advice on this legal topic, contact the esteemed wills & probate attorneys at Suncoast Civil Law.

What is a Tenant-In-Common Election?

In 2010 Florida law developed to enable a surviving spouse to file a tenant-in-common (“TIC”) election, rather than receiving a life estate possessory interest. This means that instead of a life estate, a surviving spouse can choose to take an undivided one-half interest in the homestead as a tenant in common. Under the law, the remaining one-half interest that does not go to the surviving spouse will vest to the decedent’s descendants at the time of the decedent’s death. (See Fla. Stat. § 732.401(2).)

Who May Elect to be a Tenant in Common?

The right to elect a tenant in common status may be exercised by (1) a surviving spouse or (2) that surviving spouse’s attorney in fact or guardian of the property, so long as the attorney in fact or guardian of the property has the appropriate court approval. (Fla. Stat. § 732.401(2)(a).)

What Deadlines Are There?

A TIC election must be made within 6 months of the decedent’s death, and be made within the surviving spouse’s lifetime.

If the petition is appropriately filed by the surviving spouse’s attorney in fact or property guardian then “the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.” (See Fla. Stat. § 732.401(2)(c).)

Can the TIC election be revoked?

You must make the choice to pursue a TIC election carefully. Because – No. Once a TIC election is made you cannot reverse that election.

How is the TIC election made?

A TIC election is made by filing the notice of election for recording in the official records of the county where the homestead is located. This filing will include a legally sufficient description of the homestead. Template forms exist, and competent legal counsel can also help clients review and fill out such paperwork.

What is a pretermitted spouse?

A pretermitted spouse is also a surviving spouse – but this surviving spouse married the decedent after the decedent had already executed their last will and testament. This means that although they are entitled to a share of an inheritance under Florida law, that inheritance is not appropriately provided for in the otherwise legally sufficient last will and testament. A pretermitted spouse is entitled to receive the share of an inheritance from the decedent that they would have received if the decedent died intestate (without executing a will). (Fla. Stat. § 732.301).

It should be noted, however, that there are some exceptions. For example, inheritance rights for pretermitted spouses will differ in instances where a prenuptial agreement was signed, the spouse was provided for in the will, or the will expresses a legally valid intention to not provide for the spouse to the specified degree.

Contact Suncoast Civil Law

The esteemed Sarasota will & probate attorneys at Suncoast Civil law can help you to understand what your options are, and help you strategize your next best steps as you move forward in your own Florida will & probate case. Contact our office today to begin working with our team.

Sources:

investopedia.com/articles/personal-finance/120715/what-happens-retirement-accounts-if-spouse-dies.asp

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.102.html