Bill Text: FL S0988 | 2012 | Regular Session | Introduced
Bill Title: Probate
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-03-01 - Laid on Table, refer to HB 733 -SJ 733 [S0988 Detail]
Download: Florida-2012-S0988-Introduced.html
Florida Senate - 2012 SB 988
By Senator Joyner
18-00709B-12 2012988__
1 A bill to be entitled
2 An act relating to probate; amending s. 731.201, F.S.;
3 excluding real property owned in tenancy by the
4 entireties or in joint tenancy with rights of
5 survivorship from the definition of the term
6 “protected homestead”; clarifying the application of
7 amendments to s. 732.102, F.S., made by chapter 2011
8 183, Laws of Florida, relating to a spouse’s share of
9 an intestate estate; amending s. 732.401, F.S.;
10 revising the period of time during which an attorney
11 in fact or guardian of the property of a surviving
12 spouse may petition for approval to elect to take a
13 one-half interest in the decedent’s homestead;
14 specifying the minimum duration of an extension of
15 time; creating s. 732.1081, F.S.; barring inheritance
16 rights of a natural or adoptive parent whose parental
17 rights have been previously terminated pursuant to
18 law; providing for application of the act; providing
19 effective dates.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Effective July 1, 2012, and applicable to
24 proceedings pending before or commenced on or after July 1,
25 2012, subsection (33) of section 731.201, Florida Statutes, is
26 amended to read:
27 731.201 General definitions.—Subject to additional
28 definitions in subsequent chapters that are applicable to
29 specific chapters or parts, and unless the context otherwise
30 requires, in this code, in s. 409.9101, and in chapters 736,
31 738, 739, and 744, the term:
32 (33) “Protected homestead” means the property described in
33 s. 4(a)(1), Art. X of the State Constitution on which at the
34 death of the owner the exemption inures to the owner’s surviving
35 spouse or heirs under s. 4(b), Art. X of the State Constitution.
36 For purposes of the code, real property owned in tenancy by the
37 entireties or in joint tenancy with rights of survivorship as
38 tenants by the entirety is not protected homestead.
39 Section 2. Notwithstanding section 2 or section 14 of
40 chapter 2011-183, Laws of Florida, the amendments to section
41 732.102, Florida Statutes, made by section 2 of that act apply
42 only to the estates of decedents dying on or after October 1,
43 2011.
44 Section 3. Effective July 1, 2012, and applicable only to
45 estates of persons dying on or after July 1, 2012, section
46 732.401, Florida Statutes, is amended to read:
47 732.401 Descent of homestead.—
48 (1) If not devised as authorized by law and the
49 constitution, the homestead shall descend in the same manner as
50 other intestate property; but if the decedent is survived by a
51 spouse and one or more descendants, the surviving spouse shall
52 take a life estate in the homestead, with a vested remainder to
53 the descendants in being at the time of the decedent’s death per
54 stirpes.
55 (2) In lieu of a life estate under subsection (1), the
56 surviving spouse may elect to take an undivided one-half
57 interest in the homestead as a tenant in common, with the
58 remaining undivided one-half interest vesting in the decedent’s
59 descendants in being at the time of the decedent’s death, per
60 stirpes.
61 (a) The right of election may be exercised:
62 1. By the surviving spouse; or
63 2. With the approval of a court having jurisdiction of the
64 real property, by an attorney in fact or guardian of the
65 property of the surviving spouse. Before approving the election,
66 the court shall determine that the election is in the best
67 interests of the surviving spouse during the spouse’s probable
68 lifetime.
69 (b) The election must be made within 6 months after the
70 decedent’s death and during the surviving spouse’s lifetime. The
71 time for making the election may not be extended except as
72 provided in paragraph (c).
73 (c) A petition by an attorney in fact or by a guardian of
74 the property of the surviving spouse for approval to make the
75 election must be filed within 6 months after the decedent’s
76 death and during the surviving spouse’s lifetime. If the
77 petition is timely filed, the time for making the election shall
78 be extended for at least 30 days after the rendition of the
79 order allowing the election tolls the time for making the
80 election until 6 months after the decedent’s death or 30 days
81 after the rendition of an order authorizing the election,
82 whichever occurs last.
83 (d) Once made, the election is irrevocable.
84 (e) The election shall be made by filing a notice of
85 election containing the legal description of the homestead
86 property for recording in the official record books of the
87 county or counties where the homestead property is located. The
88 notice must be in substantially the following form:
89
90 ELECTION OF SURVIVING SPOUSE
91 TO TAKE A ONE-HALF INTEREST OF
92 DECEDENT’S INTEREST IN
93 HOMESTEAD PROPERTY
94
95 STATE OF........
96 COUNTY OF........
97 1. The decedent, ................, died on ............. On
98 the date of the decedent’s death, The decedent was married to
99 ............, who survived the decedent.
100 2. At the time of the decedent’s death, the decedent owned
101 an interest in real property that the affiant believes to be
102 homestead property described in s. 4, Article X of the State
103 Constitution, which that real property being in ........ County,
104 Florida, and described as: ...(description of homestead
105 property)....
106 3. Affiant elects to take one-half of decedent’s interest
107 in the homestead as a tenant in common in lieu of a life estate.
108 4. If affiant is not the surviving spouse, affiant is the
109 surviving spouse’s attorney in fact or guardian of the property,
110 and an order has been rendered by a court having jurisdiction of
111 the real property authorizing the undersigned to make this
112 election.
113
114 ............
115 ...(Affiant)...
116
117 Sworn to (or affirmed) and subscribed before me this .... day of
118 ...(month)..., ...(year)..., by ...(affiant)...
119
120 ...(Signature of Notary Public-State of Florida)...
121
122 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
123
124 Personally Known OR Produced Identification
125 ...(Type of Identification Produced)...
126 (3) Unless and until an election is made under subsection
127 (2), expenses relating to the ownership of the homestead shall
128 be allocated between the surviving spouse, as life tenant, and
129 the decedent’s descendants, as remaindermen, in accordance with
130 chapter 738. If an election is made, expenses relating to the
131 ownership of the homestead shall be allocated between the
132 surviving spouse and the descendants as tenants in common in
133 proportion to their respective shares, effective as of the date
134 the election is filed for recording.
135 (4) If the surviving spouse’s life estate created in
136 subsection (1) is disclaimed pursuant to chapter 739, the
137 interests of the decedent’s descendants may not be divested.
138 (5) This section does not apply to property that the
139 decedent owned in tenancy by the entireties or in joint tenancy
140 with rights of survivorship.
141 Section 4. Effective July 1, 2012, and applicable only to
142 estates of persons dying on or after July 1, 2012, section
143 732.1081, Florida Statutes, is created to read:
144 732.1081 Termination of parental rights.—For the purpose of
145 intestate succession by a natural or adoptive parent, a natural
146 or adoptive parent is barred from inheriting from or through a
147 child if the natural or adoptive parent’s parental rights were
148 terminated pursuant to chapter 39 prior to the death of the
149 child, and the natural or adoptive parent shall be treated as if
150 the parent predeceased the child.
151 Section 5. Except as otherwise expressly provided in this
152 act, this act shall take effect upon becoming a law.
