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No Extension of Time Permitted to File a Tenant-In-Common Election Due to Excusable Neglect

November 20, 2020 CSBB Blog

Excusable neglect does not warrant an extension of the time to make a tenant-in-common election. See, Samad v. Pla, 267 So. 3d 476, 477-78 (Fla. 2d 2019). 

As a reminder, the tenant-in-common (“TIC”) election permits a surviving spouse to elect a one-half interest in decedent’s homestead, in lieu of a life estate. Fla. Stat. § 732.401(2).  A surviving spouse—or, with court approval the surviving spouse’s guardian or attorney-in-fact—must file the TIC election with six (6) months of the decedent’s death. Fla. Stat. § 732.401(2)(c).

In Samad v. Pla, the surviving spouse did not make the TIC election nor filed a petition within the six-month period. Instead, the surviving spouse waited until 7.5 months to move for an extension pursuant to Fla. Prob. R. 5.042, claiming excusable neglect.

Fla. Prob. R. 5.042(b), governing an enlargement of time, provides 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.’” Samad, 267 So. 3d 476, 478 (Fla. 2d 2019) (quoting Fla. Prob. R. 5.042(b)).

What is not included in Fla. Prob. R. 5.042(b)’s list is those acts required to be done within a specified time by statute. 

Here, the surviving spouse sought an extension for her excusable neglect to file an untimely TIC election.  The six-month TIC election deadline is provided by statute.  There is no applicable rule relating to a surviving spouse’s right to a TIC election.

The District Court of Appeal for the Second District held that the trial court was in error when it granted the surviving spouse’s request for an extension of time to file her notice of election.  Accordingly, the surviving spouse’s TIC election was untimely.

If you have questions about your rights as a surviving spouse, please call us at (561) 626-2101 for a free consultation.


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