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Florida Homestead Consequences for Spouses if No Last Will

Florida Homestead Consequences if No Last Will

Today’s article is about what happens to a Florida homestead, a/k/a “family home” when someone forgets all about their spouse and then dies without ever having added a spouse to the title of the family home. This misstep can to a messy probate for the surviving spouse.  Even worse, if the deceased spouse neglected to create a last will and testament in Florida, the surviving spouse’s inheritance of the Florida homestead may be compromised.

Helping folks understand the consequences for a surviving spouse’s homestead with no Florida estate planning, as a preventative measure, is the focus of this week’s article.

Spousal Failure to Add a Spouse to a Homestead Title [the Consequences]

Homestead Deed in Florida

If someone fails to add a spouse to the homestead title and also passes away without a will, a probate will be required and the state laws of intestacy will dictate to whom the homestead passes and this is not solely the surviving spouse.

The Life Estate in Florida

In an effort to protect a surviving spouse and the sanctity of the home while still protecting the rights of lawful children, the state of Florida homestead laws dictate that a surviving spouse is entitled to a “life estate” in the homestead property and that a “remainder interest” goes to the lawful children of the deceased spouse.

So, again if there is no last will and the real property was never jointly titled in the spouses names, a probate administration in Florida will be required.   Next, after enduring the probate process, the surviving spouse will end up with what is called a “life estate”.  You may think this sounds okay if you’re guessing that this means that spouse has a legal interest for life and that upon her death the property will pass to the deceased spouse’s heirs.  You would only be partially correct in this assumption, because life estates are a big problems for owners for a couple of reasons as follows.

First, life estates present problems for refinancing the existing mortgage on the real property.  Simply put, banks are unable to allow the refinance because the remainder beneficiaries have an interest and generally, aren’t interested in being put on the mortgage. Even if they’re willing to sign on the mortgage, this presents a title problem because their interest is not a present one…but rather a future interest.  Second, the owner of the life estate still must answer to the remainder beneficiaries for matters such as property maintenance and of course, the sale of the real property would need to be approved by the remainder beneficiaries.

The Homestead Waiver in Florida

The laws of intestacy in Florida will change if a “homestead waiver” in a document such as a Florida prenuptial agreement, has ever been signed by the surviving spouse.  Sometimes, a homestead waiver is signed inadvertently as part of a refinancing by the couple and this can actually make matters worse.

If a homestead waiver has been signed, then the real property will pass 50% to the surviving spouse and 50% to the children of the deceased spouse.  This unfortunate event happens because the surviving spouse had waived the protection of the Florida homestead laws.  This means that the surviving spouse will become a 50% owner with the surviving children of the deceased spouse.

Does this sound okay?

Technically, the children can charge the surviving spouse rent in this scenario, although they are also jointly responsible for expenses.  Of course, this also creates issues, as mentioned above, with refinancing, and a resale of the home and essentially makes the surviving spouse answerable to the children concerning all matters related to the real property.

The Solution: 

Titling the Florida homestead JOINTLY or

Using a Revocable Living Trust…

If a property is titled jointly with a spouse it can pass to a them without a need for probate for other proceedings.  If a spouses does not wish to leave the homestead property solely to the surviving spouse, this can be most efficiently accomplished by utilizing a Florida revocable living trust and offering a life interest the spouse or some variation thereof.

The trust option is much preferable to the intestacy laws because the trust agreement can dictate what happens if the home needs to be sold.  For example, the home could be downsized or replaced and surplus proceeds could be held the trust to support the spouse and then pass to the children.

Of course, all of the above requires a careful customized look at the specific estate circumstances.

Steve Gibbs, Esq.

 

This is an updated version of an original post dated August 25, 2016

9 comments… add one
  • grace June 5, 2018, 6:28 pm

    What happens when a homestead property is in the name of husband and wife? Upon the death
    of the other, property belongs to the surviving spouse, and being the new owner,can he or she
    has the right to sell it?

    • gibbslawfl June 12, 2018, 9:08 am

      Generally, it would pass to the surviving spouse. Let us know if we can take a closer look at the deed for you, as all legal advice should be confirmed in a private review. Thanks for your comment!

  • Anonymous July 22, 2018, 7:22 pm

    I was able to find good informaation from your articles.

  • barbara kelly December 11, 2018, 9:50 am

    I owned my condo years before I married. My spouse owns a home in NY. The deed is in my Revocable Trust. If I die first does my spouse have any financial rights to my property? He has made no financial contribution to my property.
    Also,do I have any rights to his NY property?
    We are considering a Post Nuptial agreement

    • gibbslawfl December 12, 2018, 1:45 pm

      Hi Barbara, thanks for reading and your homestead question. The short general answer is that in FL a spouse may have rights to a FL homestead in the event of the other spouse’s death by virtue of his/her living in the home during marriage. Rules for property rights upon a spouse’s death tend to vary from those applicable to divorce in FL. I can’t answer about NY because am not licensed there and don’t know and in any event, all of this lends itself to more due diligence…questions and answers. We do have a NY licensed attorney in our office. I think your inclination to pursue a post nuptial agreement is a good one, as this is generally the best way to confirm spousal rights to assets upon death. Please don’t consider this legal advice…I’m offering it for educational purposes only and as a way to point you in the right direction. Understand that legal advice can only be given in a private, detailed consultation where there is an attorney-client relationship (or at least the first steps toward one). Please e-mail Gene Ross at admin@gibbslawfl.com if you would like to schedule a more in depth discussion.

      Best,

      Steve Gibbs, Esq.

  • Jinny klein November 7, 2019, 3:41 pm

    When my mom died her home was in the name of a trust with me as trustee.
    Why does the state of florida ignore the. Revocable trust and give the guy she married unbeknownst to the family 6 month s before she past a life tenancy plus he could have forced us to sell it by exercising options. It doesnt make sense compared to your info.

    • gibbslawfl November 8, 2019, 10:13 am

      Hello Jinny, thanks for reading and commenting. The facts that you’re stating aren’t clear enough for me to offer reasons or possibilities except to say that if a life tenancy was granted 6 months before your mom passed, then something like a deed (and possibly a court order of some kind) would’ve had to have been done at that time. Spouses do have homestead rights that offer a life tenancy. The point of the article that you’re commenting on is that without a last will, the spouse’s rights are limited to life with a remainder going to children.

      I hope this helps clarify. You are always welcome to connect with Gene at admin@gibbslawfl.com or call 239-415-7495 to arrange a more in depth review and discussion.

      Best,

      Steve Gibbs, Esq.

  • Linda Randazzo November 14, 2019, 5:18 am

    Will adding my husband to the deed affect my homestead in Florida?

    • gibbslawfl November 16, 2019, 3:03 pm

      Hello Linda, thanks for reading and commenting. If you and your husband are living in the homestead, doing a deed may not impact your homestead since he may have homestead rights to that real property anyway in the event of your death. However, adding him to the deed would eliminate unnecessary complications upon death by providing him with a right of survivorship. There may be other issues to consider, so it sounds like you both may be benefit from a personalized estate planning discussion when you’re ready to take that step. Feel free to reach out to Gene at admin@gibbslawfl.com or call 239-415-7495.

      Best,

      Steve Gibbs, Esq.

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