HB 733

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 .............
98	On 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
145	of intestate succession by a natural or adoptive parent, a
146	natural or adoptive parent is barred from inheriting from or
147	through a child if the natural or adoptive parent's parental
148	rights were terminated pursuant to chapter 39 prior to the death
149	of the child, and the natural or adoptive parent shall be
150	treated as if 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.

CODING: Words stricken are deletions; words underlined are additions.