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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

31 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.

  • NiquiAMarie December 16, 2019, 9:12 pm

    Hi,

    My mom passed away without a valid will. The house’s title deed is in her name. My stepdad’s name is on the 2nd mortgage along with my mom’s. She passed away in 2017. What will be the outcome of this situation? I really need help. Can he sell because his name is on the mortgage along with my mom’s (although his name is not on the deed)? How much interest does my brother and I have as her children? He is taking over the house as if its his and I feel that we (my mother’s children) should have interest.

    • NiquiAMarie December 16, 2019, 9:16 pm

      I read the article and I was excited about the remainder interest because my stepdad is not on the deed; However, he is on the 2nd mortgage that he is currently paying off. This creates a slight fear in me with this situation. He is living in the house with his daughter (not my mother’s child). I was away for college and he forced my brother out of the house. He is trying to take what is not fully his! What do you suggest? What will be the outcome? Nothing has been done with the house to my knowledge.

      • gibbslawfl December 31, 2019, 6:55 pm

        Hello, in my previous comment, I mentioned that we would need to review documents in a confidential relationship to offer legal opinions and this is for your protection as well as ours. Please feel free to connect at admin@gibbslawfl.com.

        Best, Steve Gibbs, Esq.

    • gibbslawfl December 31, 2019, 6:53 pm

      Hello and thanks for commenting. Without looking at the deed and mortgage it is tough to comment and it is really problematic to offer any legal conclusion in a blog post. Let us know if we can help further by e-mailing Gene at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Mambo January 31, 2020, 7:10 pm

    If I have nephews but no children and I homestead my house before I marry, then after marriage create a will where I want the house to be divided between my wife and nephews, would the state honor that after my death. or would my wife get the whole house? Thanks for your helpful Q&A.

    • gibbslawfl January 31, 2020, 8:27 pm

      Hello and thanks for reading and commenting. Even though you apparently homesteaded your house before marriage, if you live in that house with your spouse, there is a good chance in FL that she’ll be able to make a claim for at least a life estate. The way to get around this is generally a prenuptial agreement with a homestead waiver. I recommend acting before you wed and that you seek expert advice, as this is only my observation offered for educational purposes given without any direct knowledge of your situation. To schedule a more in depth discussion, connect with Gene at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Jessica kramer February 10, 2020, 2:02 pm

    Hi. I love your website. It’s so informative and well written! Thank you!

    Here’s my question..
    My mom owns her Florida home outright since the 80s. She’s married to a third husband who does not Iive with her in her home in Florida, he lives in his own home in Virginia. My mom wants to will me her Florida home as I’ve become severely disabled with a brain infection. Her husband says “over his dead body will I (Jessica) get the house.”

    If my mom formalized a will deeding her house to me and expressing her desire to pass it down to me and me alone, and she subsequently, passed away, how would Florida Homestead Law impact my gaining access/title to the home with her new husband contesting?

    • gibbslawfl February 11, 2020, 11:47 pm

      Hello Jessica, thank you and kudos for reading and commenting. Yours is a tricky question. On one hand, the fact that your mom’s husband doesn’t live there could weigh in your favor. On the other, spousal homestead rights are very strong in FL. Very tough call such that if your mom wants you to have it, you might have her deed it now and obtain a waiver from her spouse. Please don’t take this is a firm legal opinion as a more information is needed and this would require a private consultation.

      Best, Steve Gibbs, Esq.

  • Emma Liana February 22, 2020, 1:24 am

    My father owns a house in Florida and now he want to sell it he has no son. In which ratio he will share the money among their wife and 2 daughters

    • gibbslawfl February 23, 2020, 5:11 pm

      Hello Emma, thanks for reading and commenting. Unfortunately, it is difficult to understand your question and it looks like it would warrant a consultation anyway. Please feel free to reach out to Gene at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Eula February 25, 2020, 6:52 pm

    Hi my question is my mom signed her property to my brother in Florida only for him to watch over it because she lives in Michigan and he in Florida. Meantime this allowed my brother to get lower property taxes. After a 1 1/2 year of marriage My brother died . The wife has now claimed the deed . The property has been with my family for over 100 years. I have lived on the property for 4 years paid all taxes . Does my family still have rights to the property

    • gibbslawfl February 28, 2020, 6:29 pm

      Hello Eula, thanks for commenting. As with many blog questions that I receive, yours is very difficult to answer with looking at the deed and other aspects of the case directly. The short answer is that if a deed was properly executed to your brother, it may be difficult to overcome the challenge by his wife due to Florida’s stringent homestead protections. Still, there are factors that could be considered such as whether the spouse lived in the homestead and for how long, etc. I do suggest to obtain formal advice from an experienced real estate litigation attorney in your area.

      Best, Steve Gibbs, Esq

  • Blake Smith April 30, 2020, 2:41 pm

    Thank you for all the information your site provides. My brother has two adult daughthers and has a homestead property he owned prior to his second marriage. He married without a prenup (supposedly) and now the wife is entitled to half the house (or lifeestate)and his two daughters to the other half since he passed away. If they agree to split it and sign an agreement, yet later learn there was indeed a prenup that the wife never disclosed what happens? Also, what would happen if before he passed away the wife had convinced him to refinance. Would the refinance affect the rights to the property? Is there a difference in the way a refinance can affect a divorce vs a death when it come to asset distribution?

    • gibbslawfl April 30, 2020, 4:03 pm

      Hello Blake, you’re welcome of course and it’s nice to get great feedback. The short answers to your questions are that yes, if there was a valid prenup, that could impact the wife’s homestead rights if it were enforceable and made reference to those specific rights. I don’t think, based upon your facts, that the refi would affect anything except that the bank’s rights to whatever equity is there would’ve changed. I’m not aware of any situation where a refi would impact spousal rights in divorce, but divorce law isn’t my expertise. The wife “convincing” him could be another issue if there was wrongful manipulation (something called undue influence). However, that can be very tough to prove. Of course all of the above are just general observations offered for educational purposes only (NOT ADVICE). For something more concrete, you would need to connect in a private attorney-client consultation to explore the facts in more detail.

      Best, Steve Gibbs, Esq.

  • Kimberly McAfee May 6, 2020, 8:16 pm

    My mom passed away and there is no will.
    My name is not on the deed to the house, which she owned and was homestead in.I am the only child and she was not married.
    What is my next step to get the deed/title in my name. And will I be automatically homestead as well.?
    I have found my name as beneficiary on IRA accounts..Does that help me?
    I reside in Florida.
    Please email me your opinion.
    Regards,
    Kim

    • gibbslawfl May 6, 2020, 11:24 pm

      Hello Kimberly, because you need legal help, it would be irresponsible of me to just throw out advice without looking at some things with you. To schedule a confidential conversation, e-mail Gene at admin@gibbslawfl.com.

      Thanks,

      Steve Gibbs, Esq.

  • William Brieva June 5, 2020, 7:55 pm

    hi. my stepfather passed but my mom was not listed on deed or mortgage,..she is making the mortgage payments and will be paid off in 5 years… will she get the title and deed?. will she be able to put her name on since mortgage is paid off?

    • gibbslawfl June 8, 2020, 12:00 pm

      Hello William, thanks for commenting. Hard to say without knowing anything about their estate plan; however, she would have homestead rights if she never waived them formally in a document so very likely she could end up with a life estate interest.

      Best, Steve Gibbs, Esq.

  • PETER Fogu June 13, 2020, 7:11 am

    I put my disable daughter on my house deed so if anything had happen to me she would have a place to live but she die before me now the country say that I own 50% of the house and will losa my homestead If I own 50% who own the other 50% thank

    • gibbslawfl June 17, 2020, 10:56 am

      Hello Peter, thanks for commenting. It’s impossible for me to offer feedback on this without seeing the deed and discussing in a private consultation. To coordinate, please follow up with Gene at admin@gibbslawfl.com.

      Best, Steve

  • Jacqueline Micheals July 2, 2020, 12:10 am

    Is my mother’s estranged husband entitled to proceeds from the sale of the house she transferred title to me during their marriage… and his name was never added to the title? If she owned the house before they married?

    • gibbslawfl July 7, 2020, 2:50 pm

      Hello Jacqueline, thanks for commenting. The short answer is it depends upon the situation, such as whether they purchased or moved into another homestead after she transferred title. Homestead laws are tricky in FL so he could potentially make a claim for a life interest in it. You may need a legal opinion in FL.

      Best, Steve Gibbs, Esq.

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