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October 26, 2022

Life Estate interests as the name suggests are interests in real property measured by the lifetime of the grantee or recipient of the interest. Life estate interests can be created by deed, by conveyance through last will and testament or as we commonly see as the default distribution of homestead to a spouse who is not on title and choses not to elect to take a one-half ownership interest in Property within six months from the date of death of their spouse. Fla. Const. Art. X Section 4c.

The person or persons inheriting a property after the death of the life estate holder are called remaindermen. Importantly there are serious differences between a life estate that is created via a Lady Bird Deed or enhanced life estate deed and those that are created by Last Will and Testament or pursuant to the homestead descent to spouses listed above. A Lady Bird Deed or Enhanced Life Estate Deed allows for an automatic transfer of title upon the death of the grantor to the vested remainder and is typically drafted in a manner that specifically avoids liability for waste to the remaindermen and allows the grantor to mortgage or reconvey the Property. That is in stark contrast to other life estate v. remainder interests in Florida.

Without language a deed setting up the relationship and waiving such liability the Life Estate holder has an obligation to upkeep the Property and prevent waste or he or she will be exposed to liability from the remaindermen. Sometimes especially in the situation where the surviving spouse in a probate who is not on title to homestead inherits a Property with a life estate, there is a contentious relationship between the life estate holder and the remaindermen. All the more reason as a life estate holder and remainderman to know what Florida law requires of you.

A Life Tenant gets the exclusive use and possession of the Property during his or her lifetime and can also derive rents or profits therefrom. Schneberger v. Schneberger, 979 So.2d 981 (Fla. 4th DCA 2008). Just because you get a life estate interest doesn’t mean you have to actually live there, it’s the use of the Property for your lifetime. Id. In other words you can rent the Property out.

Sounds good but the negative to holding a life estate in Florida is liability to the remaindermen for upkeep of the Property and an obligation to avoid waste. Chapman v. Chapman, 526 So.2d 131 (Fla. 3d DCA 1988). What does that mean in plain English? If you hold the life estate your obligated to make repairs that are essential to the preservation of the property, your obligated to pay the interest on any outstanding mortgages and Property taxes. Id. Principal paid on the other hand is not required and the Life Estate holder may seek contribution (payment) from the remaindermen for paying principal payments.

Remaindermen who witness their future property go into disrepair have standing to bring an action against the Life Estate holder to force a security interest in the Property for its protection, compel actions/repairs and payments or to have a special receiver appointed to look after property. Importantly for Floridians the remaindermen also have the ability to compel repairs of hurricane damage.

If you’re a holder of a life estate or a remaindermen and you have questions about any of the issues raised here, give us a call we litigate Property disputes throughout the state of Florida and we offer free no obligation consultations.

-Brice Zoecklein, Esq.