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.