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 survivorshipas38tenants by the entiretyis 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 electiontolls the time for making the80election until 6 months after the decedent’s death or 30 days81after the rendition of an order authorizing the election,82whichever 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, whichthatreal 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.