Florida Estate Planning Lawyer Blog
A common question our Jacksonville Homestead Lawyers receive is “When A Spouse Dies, Does The House Automatically Transfer To You?”
One of the more common Florida probate questions our clients ask the Jacksonville homestead lawyers at The Law Office of David M. Goldman PLLC is whether a house automatically transfers to the living spouse when one spouse dies? The answer often depends on many factors; there is no simple yes or no answer.
Florida does offer some of the best homestead laws in the nation. Before explaining the great homestead benefits that Florida offers, let’s see how the law devises a property when one spouse passes away. Remember a home may or may not be a homestead. For this article, we will use the situation where the home is a homestead unless otherwise noted. The relevant homestead law comes from Article X, Section 4 of Florida’s Constitution.
Subsection (c) states, “The homestead shall not be subject do devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner’s spouse if there is no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.
Further, a surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Florida. In some cases and with a proper election, the surviving spouse may be entitled to a 50% interest in the homestead. The remaining interest belongs to the deceased spouse’s descendants, such as the children. This homestead protection is so strong that even if the deceased spouse’s will leaves the homestead to another person other than the spouse, the living spouse is still entitled to live in the homestead until he or she dies. When the second spouse passes away the remaining interest passes to the deceased spouse’s heirs (unless a timely election for the 50% interest is made).
In Florida, Can the Homestead Rights Be Waived?
This is also a great question our probate attorneys often receive. Sometimes a spouse may not wish to inherit the family home. One reason may be that the spouse wishes to live elsewhere, and wants the house to be sold or go to a child instead. Another reason might be that the taxes are simply too expensive for one spouse to afford on his or her own.
A spouse can waive these homestead rights before the spouse passes away. This can be done through a legally valid marital agreement. Both spouses must agree to waive the homestead protection, and all the necessary elements of a contract must be present. These elements are: offer, acceptance, and consideration, which means there must be an actual contract between the two people. A spouse can also waive their rights in a prenuptial agreement which has additional requirements to be valid.
One party cannot coerce the other party to enter into the agreement. Both spouses must enter the agreement because they understand it what both parties wish to do.
Florida homestead protections very strong, and every Florida estate plan should account for how this state’s homestead law affect wills, trusts, and other estate planning documents. For more information, contact the Jacksonville Homestead Lawyers at The Law Office of David M. Goldman PLLC at 904-685-1200.