Cinderella (Amazon Prime) got a makeover and the 2021 girl-boss movie got me thinking, what would have happened if the story took place in sunny Florida? I’m doing the Lord’s work here, people LOL. Get comfortable, we’re going to apply our Florida homestead laws to the Cinderella fairy tale!
Avid readers of this blog (I love you!) already know that should Cinderella’s dad and stepmother legally marry, and Cinderella’s dad kept the homestead property in his name only (he was the only person on the deed), at his unexpected death, the wicked stepmother would receive a life estate. At the stepmother death, the house would pass to Cinderella.
Until 2012, a surviving spouse would ALWAYS receive a life estate, with the children receiving a remainder interest. The surviving spouse would be responsible for the property expenses while alive and have an obligation to not commit waste and abuse the property. As we can imagine, If the surviving spouse and children don’t get along, the obligations between a life tenant and the remaindermen can easily create conflicts.
However, Florida Statute sec 732.401 now gives a surviving spouse an alternative to receiving a life estate. For 6 months after the death of the owner of a Florida homestead, the surviving spouse can file an election to take a half-interest instead of a life estate. The election is made by recording a form, included in the statute, in the public records of the county where the property is located, within 6 months of the spouse’s death. This election is not tied to a probate. The election is instead filed in the public records.
This new rule is intended to protect the stepparent and force the child(ren) to share in the cost of the property. Within 6 months of dad’s death, stepmom could elect to own the property as tenants in common WITH Cinderella. They would each own a 50% interest in the property and both Cinderella and step-mother would share in the property expense (property tax, insurance, upkeep, etc.), a much more favorable option for step-mother….if she elects this option in time.
The pressing questions is, what happens if the evil step-mother couldn’t put her anger aside long enough to seek legal counsel within her 6 month deadline? Is there an extension to this 6-month window?
The short answer is no. The six-month deadline cannot be extended, even if filed before the expiration of the deadline. This makes Fla.Stat. §732.402(2) a statute of repose and not a statute of limitation because it cannot be extended for any reason, either before or after the expiration of the deadline.
A surviving spouse needs to quickly decide whether it is in his or her best interest to elect to take a 50% interest as tenants-in-common with the decedent’s lineal descendants or keep the default life tenancy. The election is made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county where the homestead property is located, this has nothing to do with probate. Fla.Stat. §732.401(e) provides a sample of the notice.
There you have it, we learn that it makes sense to seek legal counsel sooner rather than later and that WICKED stepmothers are the stuff of Disney and fairy tales, but WIDOWED stepmothers make up the bulk of real-life inheritance wars.