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Florida Homestead Law: Your Florida homestead is your castle – or is it?

Florida Homestead Law

Many of my ideas for blog posts come from the phone calls and emails I receive from potential clients about legal questions they have concerning their estate planning, Florida Homestead Law, Medicaid issues for their parents, probate concerns, etc.  This month, I received three phone calls from three different clients for whom I had done estate planning in the past who have since remarried and now want to make sure that their new spouse and the adult children from the prior marriage are taken care of.  My response?  I really wish you would have called me before you got married.

When you have a major life event change, that is definitely the time to review your estate planning.When you have a major life event change, that is definitely the time to review your estate planning.  Obviously, when someone passes away, in most instances you cannot have the plan reviewed before the event occurs, but if you are getting remarried?  You most definitely have enough of a “head’s up” to call your estate planning attorney to discuss this.

What you need to know about the Florida Homestead Law

Why?

Because you are most likely unaware of Florida laws that could substantially affect your estate plan.  Like what?  Well, let’s take, for instance, your homestead.  Understanding the Florida  homestead law can be very confusing.  Under our Florida constitution, Article X, Section 4, states that a homestead may not be devised to anyone if the homeowner has a spouse or minor children, except that, if the children are adults, the homeowner can devise their home to their spouse.  This means that, if you own your home in your name only, and then you get remarried, unless you signed a pre-nuptial agreement with your fiance, after you are married, your spouse will have certain rights to the home.  You will not be able to Will the house to your adult children, nor can you sign a deed leaving the house to your adult children, without your new spouse’s consent.  If you Will your house to your adult children without your new spouse’s consent (or you had an existing Will that was prepared prior to your marriage), then the spouse will have the right to contest the Will and to elect either a life estate in the home or take a one-half interest in the home.  By the same token, you cannot do a deed leaving the home equally to your children (I’m assuming you have more than one) and your new spouse, without your new spouse consenting to waiving his or her rights they would normally have under the laws of the state of Florida.

By the same token, you cannot leave all of your assets to your children and nothing to the new spouse without the new spouse signing a waiver of their rights.  This is typically done via a pre-nuptial agreement (or if you do it after you are married, a post-nuptial agreement).  What happens if you leave everything to the children and nothing to the new spouse?  The new spouse has an elective share right against all assets (not just assets that go through probate) of thirty (30%) percent of the value of the elective share estate which includes assets going through probate, as well as assets that are held in a revocable trust, assets which pass by right of survivorship (i.e., jointly owned assets), life insurance with cash value, among other things.

If you are planning to get re-married, and you have any concerns about your adult children (or minor children), please, consult an estate planning attorney before you get re-married.


Laurie Ohall is a board certified Elder Law attorney with license to practice in both Florida and Ohio.  For more information about estate planning or probate, please contact the Brandon, FL Estate Planning Offices of Laurie Ohall today.


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Laurie Ohall

Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon (Tampa), Florida. Ms. Ohall is a sought after expert in the area of elder law, probate, estate planning, special needs planning and guardianship. You can find her on twitter at @ohalllaw,  LinkedIn, Facebook , and Google +.

 

4 Comments

  • Jennifer Alexander

    Hi Laurie,
    Thank you so much for this information about the Homestead Act and prenuptial agreements. Can you tell me if the prenup has to be written in any specific way, specifically stating that the prenuptial waves the Homestead Act? My mother does have one in place but the words “waves the Homestead Act” is not in it. Does this need to be, or any other specific language to ensure that her children get their inheritance?
    Thank you. Jen

    • Laurie E. Ohall

      Jen, that’s not an easy question to answer because the language could be written any number of ways. If your mother is not certain about what her prenup says, she should go back to the attorney who prepared it and specifically ask if her spouse has waived his homestead rights to her house.

  • PD

    I am in the will of my father to inherit the house. I am not a minor child. My probate lawyer filed for homestead exemption but the Florida healthcare administration has a lien on the home. Will they be able to take the house or am I protected by the homestead exemption?

    • Laurie E. Ohall

      Under FL law, the homestead is protected from creditors, including Medicaid, so long as the house is going to a spouse or blood relative (i.e., a child, sibling, parent, nieces and nephews, etc.). Based on what you told me, I would guess that you will be fine. Medicaid will receive a copy of the inventory (and they should also receive a copy of the Petition to Determine Homestead), and then they will release their claim. Your attorney should know what to do.

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