In Samad v. Pla, the Florida Second District Court of Appeal confirmed how critical it is for a surviving spouse to file the tenant-in-common (“TIC”) election on time. Excusable neglect does not apply to the untimely filing of the surviving spouse TIC election.
What is a TIC election?
The ability to file a TIC election was added to Florida law in 2010. Section 732.401(2) provides:
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.
Basically, the one-half tenant in common interest gives the surviving spouse the option to take an ownership interest in the homestead, as opposed to the possessory interest of a life estate. You can learn more about the TIC election here. The ability to elect the one-half tenant in common interest gives the surviving spouse the option to partition the property, discussed here.
What is the Deadline To File the Surviving Spouse TIC Election?
The TIC Election statute requires that the surviving spouse file a notice of election in the official record books of the county or counties where the homestead property is located within 6 months after the decedent’s death and during the spouse’s lifetime.
Extension of the deadline to file the TIC election is allowed in one circumstance:
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.
Therefore, if an attorney in fact or guardian of the property seeks to make the election for the surviving spouse, court approval is required. The petition for court approval must be filed within 6 months of death. The deadline to file the notice of election is extended and based off of the order allowing the election.
The Surviving Spouse Missed The 6 Month Deadline
In Samad v. Pla, the surviving spouse did not file a notice of election within 6 months of death. A petition by an attorney in fact or by a guardian of the property for approval to make the election was not filed within 6 months of death.
Instead, the surviving spouse, about 7 ½ months after decedent’s death, moved pursuant to Florida Probate Rule 5.042(b)(2) for an extension of time to make the election, based on excusable neglect.
Florida Probate Rule 5.042 does not apply to the Spousal TIC Election
Florida Probate Rule 5.042, as summarized by the appellate court, provides that:
‘When an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder,’ the court may grant a request for enlargement of time to accomplish the required act if (1) a request for enlargement is made before the expiration of the specified time or (2) after expiration of the time if ‘the failure to act was the result of excusable neglect.
Rule 5.042 does not apply to acts required to be done by statute. Therefore, no extension of time based on excusable neglect is permitted for the filing of the spousal TIC election.
The appellate court reversed the trial court’s granting of an extension of time to the surviving spouse. The surviving spouse did not comply with the requirements of 732.401(2), and therefore did not file a timely election.
Spouses Must File The TIC Election Within 6 Months of Decedent’s Death
The lesson here is that a surviving spouse must file the TIC election within 6 months of decedent’s death. An attorney in fact or guardian of the property must petition for approval to file the election within 6 months of death. Once again, quick Florida Probate Deadlines and Timelines operated to bar a surviving spouse from pursuing rights granted under the Florida Probate Code.