Amendments to Florida’s Probate Code

Recent amendments to Florida’s Probate Code became effective on October1, 2010.  Chapter 2010-132, Laws of Florida, should be required reading for all Florida lawyers whose practice includes probate.  Some of the changes only clarify existing law, such as the changes relating to formal notice.  Other changes are significant, including new section 732.805 which deals with marraiges procured through fraud and changes to section 731.119 which allow an interested party who is not a creditor to file a caveat before someone dies.

Other changes that are impotant include changes to section 732.4015, which affect disclaimer of the homestead and 732.4017 which may affect an intervivos transfer of a homesead.

The most significant changes in these amendments affect the surving spouse’s homestead rights.  Article X, section 4 of Florida’s constitution restrict a person’s ability to devise their homestead if survived by a spouse or minor child.  If a person’s homestead is not jointly owned with their spouse and he or she is survived by a spouse and minor child, the homestead will pass to the spouse for life, with a remainder interest in the decedent’s children.   The recent amendment to section 732.401, Florida Statutes, allows a surviving spouse to elect to take a one-half interest instead of a life estate.  This election must be made within 6 months of death and is made by filing an election in the public records.  The form for the election is set forth in the statute.