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A Surviving Spouse's Right to Florida Homestead When There's No Will

The laws in Florida governing homestead real property can be complex and confusing. This is particularly true when the homestead is titled in the name of only one spouse who dies and does not leave a Will or Trust devising the homestead to the surviving spouse. This is not a scenario which most spouses would want.

An example can best set forth this dilemma. Jack and Kathy are married and they live in a home which is titled only in Jack's name. Jack has one adult child, Susan, from a prior marriage. Jack dies unexpectedly and Jill goes to an estate attorney and asks how she can get the house titled into her name. Unfortunately, Jack did not have a Last Will & Testament. So what happens to the house--does Kathy get it? The attorney does not have good news for Kathy.

Under Florida law governing homestead, Kathy has two options--neither of which give her complete ownership of the home. She can either take a life estate in the home, with a vested remainder to Susan, or Kathy can make an election to take an undivided one-half interest in the home as a tenant-in-common, with the remaining undivided one-half interest vesting in Susan.

The life estate basically allows Kathy to live in the home during her lifetime. As such, she cannot be kicked out. However, she also cannot sell or mortgage it and if she permanently moves out, she essentially loses any right to it. Needless to say, owning a life interest is not ideal. It gives Kathy a place to live but no real ownership rights.

If Kathy decides she does not want to live in the home after Jack dies, she can make the election to take a one-half interest in the home. This election must be made within six months after Jack's death and once made, it is irrevocable. If Kathy makes this election, she will own the house jointly with Susan as tenants-in-common. In essence, they become co-owners. This would require them to agree on what to do with the house. If Kathy wants to sell and Susan does not, they would be deadlocked. If they could not resolve their disagreement, they would have to seek court resolution--via a partition action--of what to do with the house. This too is a less than perfect outcome, especially for Kathy.

So what's the answer to avoiding this situation? Simply put, Jack caused this problem. If he had had in place a Will which devised the house to Kathy, there would be no problem. The house would have gone to Kathy and Susan would not have any right to it unless Kathy died before Jack. Alternatively, Jack could have added Kathy to the title to the home so that they owned it as husband and wife. In that scenario, the home would go to Kathy if she survived Jack. Additionally, Jack could have placed the title to the home in a Living Trust and named Kathy as beneficiary. This too would have avoided the problem.

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Attorney Michael Lins
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