Florida Statute 732.401 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLII
ESTATES AND TRUSTS

Chapter 732
PROBATE CODE: INTESTATE SUCCESSION AND WILLS

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F.S. 732.401

732.401 Descent of homestead.—

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

(2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

(a) The right of election may be exercised:

1. By the surviving spouse; or

2. With the approval of a court having jurisdiction of the real property, by an attorney in fact or guardian of the property of the surviving spouse. Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.

(b) The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime. The time for making the election may not be extended except as provided in paragraph (c).

(c) A petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election must be filed within 6 months after the decedent’s death and during the surviving spouse’s lifetime. If the petition is timely filed, the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.

(d) Once made, the election is irrevocable.

(e) The election must be 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 or counties where the homestead property is located. The notice must be in substantially the following form:

ELECTION OF SURVIVING SPOUSE
TO TAKE A ONE-HALF INTEREST OF
DECEDENT’S INTEREST IN
HOMESTEAD PROPERTY

STATE OF

COUNTY OF

1. The decedent, , died on . On the date of the decedent’s death, the decedent was married to , who survived the decedent.

2. At the time of the decedent’s death, the decedent owned an interest in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, which real property being in County, Florida, and described as: (description of homestead property) .

3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate.

4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney in fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election.

(Affiant)

Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization this day of (month) , (year) , by (affiant)

(Signature of Notary Public)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

(Type of Identification Produced)

(3) Unless and until an election is made under subsection (2), expenses relating to the ownership of the homestead shall be allocated between the surviving spouse, as life tenant, and the decedent’s descendants, as remaindermen, in accordance with chapter 738. If an election is made, expenses relating to the ownership of the homestead shall be allocated between the surviving spouse and the descendants as tenants in common in proportion to their respective shares, effective as of the date the election is filed for recording.

(4) If the surviving spouse’s life estate created in subsection (1) is disclaimed pursuant to chapter 739, the interests of the decedent’s descendants may not be divested.

(5) This section does not apply to property that the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.

History.—s. 1, ch. 74-106; s. 17, ch. 75-220; s. 37, ch. 2001-226; s. 12, ch. 2007-74; s. 7, ch. 2010-132; s. 3, ch. 2012-109; s. 4, ch. 2021-205.

Note.—Created from former s. 731.27.

F.S. 732.401 on Google Scholar

F.S. 732.401 on Casetext

Amendments to 732.401

Arrestable Offenses / Crimes under Fla. Stat. 732.401

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 732.401.

Annotations, Discussions, Cases:

Cases Citing Statute 732.401

Total Results: 20

In Re: Amendments to Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 2024-07-03

Snippet: Stat. Valuation of the elective estate. § 732.401, Fla. Stat. Descent of homestead.

Benzo Elias Rudnikas v. Mercedes Gisela Gonzalez

Court: District Court of Appeal of Florida | Date Filed: 2024-03-27

Snippet: intestate succession, as provided in section 732.401(1), Florida Statutes (2021). See In re Finch’s

JONATHAN STIRBERG and JESSICA STIRBERG v. HENRY H. FEIN, in his capacity of Successor Co-Trustee of the NAT STIRBERG REVOCABLE RESIDENCE TRUST

Court: District Court of Appeal of Florida | Date Filed: 2023-03-15

Snippet: an abuse of discretion. We agree. Section 732.401, Florida Statutes (2022), titled “Descent of homestead

ROBERT FELDMAN, etc. v. JEFFREY SCHOCKET

Court: District Court of Appeal of Florida | Date Filed: 2022-09-21

Snippet: Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

In Re: Amendments to the Florida Probate Rules - 2021 Fast-Track Report

Court: Supreme Court of Florida | Date Filed: 2021-11-04

Snippet: 201(33), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead.

Mullins v. Mullins

Court: District Court of Appeal of Florida | Date Filed: 2019-06-07

Citation: 274 So. 3d 513

Snippet: inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth and

Mullins v. Mullins

Court: District Court of Appeal of Florida | Date Filed: 2019-06-07

Citation: 274 So. 3d 513

Snippet: inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth and

RICHARD ALAN SAMAD v. STELLA PLA

Court: District Court of Appeal of Florida | Date Filed: 2019-03-15

Citation: 267 So. 3d 476

Snippet: property as a tenant in common under section 732.401(2), Florida Statutes (2017), and deemed Pla's

Laurel Kelly, as Martin County Property Appraiser, and Ruth Pietruszewski, as Martin County Tax Collector

Court: District Court of Appeal of Florida | Date Filed: 2015-02-25

Citation: 160 So. 3d 78, 2015 Fla. App. LEXIS 2614

Snippet: surviving spouse or minor child or children under s. 732.401” or if ‘‘[u]pon the death of the owner, the transfer

Dr. Ross G. Stone v. Nancy Stone and Alma Stone

Court: District Court of Appeal of Florida | Date Filed: 2014-11-12

Citation: 157 So. 3d 295, 2014 Fla. App. LEXIS 18431

Snippet: transferred does not descend as provided in s. 732.401 if the transferor fails to retain a power, held

Friscia v. Friscia

Court: District Court of Appeal of Florida | Date Filed: 2014-08-27

Citation: 161 So. 3d 513, 2014 Fla. App. LEXIS 13251, 2014 WL 4212689

Snippet: survived by a spouse and at least one descendant. § 732.401(1), Fla. Stat. (2010). In those cases, the surviving

Geraci v. Sunstar Ems

Court: District Court of Appeal of Florida | Date Filed: 2012-06-27

Citation: 93 So. 3d 384, 2012 WL 2401793, 2012 Fla. App. LEXIS 10469

Snippet: encumbrance shall be as provided by law. See also §§ 732.401(1) (statutory homestead exemption pertaining to

Aronson v. Aronson

Court: District Court of Appeal of Florida | Date Filed: 2012-02-01

Citation: 81 So. 3d 515, 2012 WL 280565, 2012 Fla. App. LEXIS 1343

Snippet: 693, 697 (Fla. 4th DCA 2006). Finally, section 732.401(1) of the Florida Statutes (2001), provides: (1)

In Re Amendments to the Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 2010-09-02

Citation: 50 So. 3d 578, 35 Fla. L. Weekly Supp. 482, 2010 Fla. LEXIS 1455, 2010 WL 3431722

Snippet: Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla

BAYVIEW LOAN SERVICING, LLC v. Giblin

Court: District Court of Appeal of Florida | Date Filed: 2009-04-29

Citation: 9 So. 3d 1276, 2009 Fla. App. LEXIS 3867, 2009 WL 1139236

Snippet: Giblin, and his descendents. We affirm. See § 732.401(1) Fla. Stat. (2001); King v. Ellison, 648 So.2d

Clemons v. Thornton

Court: District Court of Appeal of Florida | Date Filed: 2008-03-10

Citation: 993 So. 2d 1054, 2008 Fla. App. LEXIS 3308, 2008 WL 624863

Snippet: being at the time of the decedent’s death.” § 732.401(1), Fla. Stat. (2000). The failure of Mr. Clemons’s

In Re Amendments to the Fl. Probate Rules

Court: Supreme Court of Florida | Date Filed: 2007-07-12

Citation: 964 So. 2d 140, 32 Fla. L. Weekly Supp. 505, 2007 Fla. LEXIS 1234, 2007 WL 2002458

Snippet: 201(29)(31), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla

In re Amendments to the Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 2005-09-29

Citation: 912 So. 2d 1178, 30 Fla. L. Weekly Supp. 666, 2005 Fla. LEXIS 1917, 2005 WL 2385258

Snippet: Committee notes revised. Statutory References § 732,401, Fla. Stat. Descent of homestead. § 732,4015, Fla

Collinson v. Miller

Court: District Court of Appeal of Florida | Date Filed: 2005-04-13

Citation: 903 So. 2d 221, 2005 WL 840188

Snippet: the property. See art. X, § 4, Fla. Const.; §§ 732.401, .4015, Fla. Stat. (1977). Mrs. Miller also could

Warburton v. McKean

Court: District Court of Appeal of Florida | Date Filed: 2004-06-09

Citation: 877 So. 2d 50, 2004 WL 1257519

Snippet: limitation. Art. X, § 4(c), Fla. Const (2002); § 732.401(1), Fla. Stat. (2002); City Nat'l Bank of Fla.