Florida law grants surviving spouses a number of important rights and benefits. It is imperative that a surviving spouse retain counsel with significant experience in the Florida probate process.
When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian. That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian. Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened.
A partition action is used to force the sale of jointly owned property. Typically, a partition is sought when co-owners of a piece of real estate are unable to agree as to how to continue their joint ownership of the subject property. Florida law provides an absolute right to any co-owner of property to seek a partition. See Ch. 64, Florida Statutes. While this absolute right to partition seems at odds with provisions of the Florida Constitution that protect homestead property from forced sale, Florida courts have repeatedly held that homestead property is subject to a partition action from a co-owner.
Partition actions are often used to force the sale of jointly owned property when the owners cannot agree amongst themselves what to do with the property. Florida law provides a general framework on how a partition action is to proceed, but the details are left to the discretion of the trial court.
An ambiguous deed with survivorship language creates confusion, requiring the court to interpret the ownership of real estate.
In the wake of a loved one’s death, an individual often learns that he or she has inherited real property owned by the decedent. In our practice, the client will often be one of multiple beneficiaries of the same parcel of property. Seemingly without exception, the beneficiaries do not agree as to how the property should be held, used, or managed.
In the most recent Florida homestead case, the appellate court rules that boilerplate language in a deed operates as a waiver of the spouse's homestead rights.