This is the second installment in our series discussing the impact of marriage on the legal rights of spouses to share in each other’s assets. We now focus on what happens to a married person’s “homestead” property (primary residence) when he or she passes away.

In Florida, your spouse is entitled to an interest in your homestead upon your death, regardless of whether he or she is on the deed to the property. In fact, even if you were to die with a will leaving your homestead to someone else, without more, your spouse’s entitlement would remain. This powerful restriction on your ability to choose who is to receive your homestead is found in both the Florida Constitution and Florida Statutes.

The degree of your spouse’s interest in your homestead depends upon whether you have children and, if so, whether they are minors. If you die leaving behind any children under the age of 18, you have no say in who takes your homestead. In that situation, your spouse would automatically inherit a “life estate” in the property (the right to live there for life) and your children would take the “remainder” so that they would have full rights to the property, but only after your spouse’s death. Alternatively, your spouse could elect to take a one-half interest in your homestead, giving your children a current one-half interest and making it easier to sell the homestead before your spouse’s death.

If your children are all over the age of 18, the restriction eases up a bit. You may leave your homestead 100% to your spouse. However, if you try to leave it any other way (or do not make a plan), the result will be the same as above. Any of those options may be undesirable in a second (or later) marriage where you have children who are not your spouse’s children. Finally, if you pass away leaving a spouse but no children, your spouse is entitled to 100% of your homestead, whether or not that is your plan.

Fortunately, you can avoid these restrictions through proper planning. A valid “waiver” of homestead rights by your spouse, usually through a prenuptial agreement, can allow you to pass your homestead on to your children or other desired beneficiaries. Of course, you might be content with leaving your homestead to your spouse and rely on these constitutional and statutory protections to operate automatically. However, as we will learn in our next installment of “Marrying With Assets,” this area of law is so tricky that you should always consult with a lawyer about any transaction involving homestead property.

For more information on what you can do to keep your estate plan intact, we encourage you to attend one of our monthly educational workshops.

Image courtesy of Witthaya Phonsawat  /  freedigitalphotos.net

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