Homestead and Marriage – Something To Think About Before You “Tie The Knot”

Homestead and Marriage – something to think about before you “tie the knot”. I have written about this topic before, and like many situations and clients that walk into my office, this one keeps repeating itself.  If you own a house solely in your name, and you are planning on getting married, PLEASE READ THIS.

Once a couple is married in the state of Florida, the person who owns the house loses their right to leave the house to whomever they want after their death.  What?  You read that correctly.  Florida has very strict rules about the homestead and marriage or minor children.  Article X, Section 4(c) of the Florida Constitution specifically states that the “homestead cannot be subject to devise if the owner is survived by a spouse or minor child….”   What does this mean?  If you own a house solely in your name, and you later get married and never put your spouse on the title to the house, and then you die before your spouse, your spouse cannot be kicked out of the house and has rights to the homestead.  It doesn’t matter if you have a Will or Trust leaving the house to your adult children (or someone else) – those documents will be void as to that devise, and your spouse will be able to assert their rights in your homestead.

But, you say, it was my house before we were married.  Why can’t I leave it to whomever I want?  Or, perhaps you say, my spouse already knows they will not be getting the house, so there are no worries.  Hmmmm, I’ve heard that one before.

Let me give you an example of what can happen.  Sally and Tim are in their 50’s and they decide to get married.  Sally has an adult daughter whom she wants to have her house at death.  Sally and Tim have talked about the fact that Sally’s daughter will get the house if Sally dies first.  Sally even has a Will that states her daughter gets everything at her death.  They get married and do not have a pre-nuptial agreement.  What happens if Sally dies first?  Well, Tim is considered a “pretermitted spouse” meaning a surviving spouse who was omitted from the will of the testator.  According to Florida law, a pretermitted spouse is entitled to inherit from the decedent spouse’s estate as if that person died WITHOUT a Will.  This means that the pretermitted spouse is entitled to 50% of the estate, with the decedent’s child or children inheriting the other 50%.  And, when it comes to the homestead, the surviving spouse who is left out of the Will gets to choose whether they want a life estate in the homestead or whether they want to elect owning a 50% interest in the homestead.  In order to elect the 50% interest, the surviving spouse must do this within 6 months of the death of the decedent spouse.

So, back to Sally and Tim – if Sally dies first, Tim has the right to either a life estate in the house or electing a 50% interest in the home.  But, you say, that is not what Sally wanted!  And, you say, Tim wouldn’t do that, he and Sally had an understanding.  Uh-huh.  You’d be amazed at what people will do after someone dies.  And don’t think that, just because Tim doesn’t know the law that Sally’s daughter can get one over on him.  If she tries to sell the house, the title company will require Tim to sign off on the deed in order to sell (at which point, he will know he has an interest in the property).

How do we fix this problem?  Sally and Tim can sign a pre-nuptial agreement before they get married and Sally could ask Tim to waive all his rights to the homestead (both if they are divorced and if she dies first).  Or, if they are finding all of this out after they were married, they could sign a post-nuptial agreement (which does require a full financial disclosure of all assets by both parties whereas both parties can waive a financial disclosure using a pre-nup).  Either way, before you tie the knot, know your rights!

Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida.  Contact Ms. Ohall today if you need estate planningelder lawprobate or guardianship assistance.

By |2014-09-01T16:53:14+00:00September 1st, 2014|Categories: Estate Planning, Florida Laws|Tags: , , |0 Comments