One of the basic building blocks of Florida probate law is the mandatory life estate in homestead property all surviving spouses are entitled to under F.S. 732.401(1). Life estates are supposed to protect surviving spouses by guaranteeing them the “rent free” use of their homes for life.

As explained in a provocative 2007 Florida Bar Journal article entitled The New Homestead Trap: Surviving Spouses Are Trapped by Life Estates They No Longer Want or Can Afford, over time it became apparent that life estates come with all sorts of unintended consequences, sometimes turning what should be financial safety nets into costly burdens for widows and widowers.

The legislative fix came in 2010, when F.S. 732.401 was amended to allow a surviving spouse to opt out of a life estate and instead take a 50% tenancy-in-common interest in the homestead property. As explained in this Legislative White Paper, receiving a tenancy-in-common interest in lieu of a life estate offers significant benefits to surviving spouses.

Can “excusable neglect” get you an extension to file a late homestead election?

This new protective option for surviving spouses was balanced against Florida’s strong public policy favoring the speedy and final determination of probate proceedings by making it subject to a 6-month filing deadline. But how “hard” is this deadline?

Most probate deadlines are subject to some kind of extension if your judge decides there’s a good reason for why you were late. For example, F.S. 732.2135 allows a surviving spouse to file a late elective-share claim if a judge decides there was “good cause shown”. There’s no equivalent statutory “out” for late homestead claims under F.S. 732.401(2). This distinction was no oversight, it was intentional. Here’s an excerpt from the Legislative White Paper:

The time for making the homestead election differs from the provisions of Florida’s elective share statute. Consideration was given to the distinctions between the two elections. The surviving spouse potentially takes nothing under the elective share statutes if the time requirements are not met. The proposed changes to the homestead statute, by contrast, still provide the surviving spouse with a life estate if no election is made so the underlying constitutional policy is preserved whether or not an election is made. (Emphasis added.)

But what about probate rule 5.042? Under this rule if a judge decides you didn’t file something on time because of some kind of “excusable neglect” (such as secretarial oversight), she can usually grant you an extension.

Does rule 5.042(b) apply to F.S. 732.401? Until now we’ve never had an appellate court address that question. Now we do. And I think most probate lawyers will be surprised by the 2d DCA’s answer.

Samad v. Pla, — So.3d —-, 2019 WL 1212338 (Fla. 2d DCA March 15, 2019):

In Samad v. Pla, a widow filed an election under F.S. 732.401(2) to take a 50% tenancy-in-common interest in the homestead property about a month-and-half late. She then petitioned for an extension under probate rule 5.042 claiming excusable neglect. The probate judge agreed, and granted the requested extension. Wrong answer said the 2d DCA. Here’s why:

[R]ule 5.042(b)] provides, in pertinent part, that “[w]hen 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.” (Emphasis added.) By its own terms, therefore, rule 5.042(b) does not apply to acts required to be done within a specified time by statute, and there is no probate rule relating to a surviving spouse’s right to elect an undivided one-half interest in the decedent spouse’s homestead as a tenant in common. …

Because [surviving spouse] failed to satisfy the requirements set forth in section 732.401(2), the trial court erred as a matter of law in granting her an extension of time to file her notice of election under that section and in deeming her election timely.

You’ve been warned …