Recent Change to Florida's Homestead Law Benefits Surviving Spouses
A recent change to one aspect of Florida's homestead law affects a surviving spouse's stake in a couple's residence and may provide a basis for altering your estate plan.
August 25, 2011
Florida has a strong legal history of protection of home ownership via tax policy, probate laws and debtor's rights. The foundation of this is the Florida Constitution, which protects homeowners from the forced sale of or lien encumbrances on homestead property by creditors, except for three specific reasons:- Unpaid homestead property taxes and assessments
- Mortgages for the purchase, improvement or repair of the homestead
- Liens for maintenance, repairs or improvements to the homestead
A recent change to one aspect of Florida's homestead law affects a surviving spouse's stake in a couple's residence after the other spouse dies.
Under Florida law, the surviving spouse is entitled to a "life estate" in the couple's homestead, even if he or she was not a legal owner of the home. While the surviving spouse's interest is subject to prenuptial or postnuptial agreements, it cannot be affected by the late spouse's will, trust or other testamentary intent.
In other words, a husband whose late wife was the sole owner of the home in which they lived has a right to stay in the home for life, even if the wife left the home to her children from a previous marriage. One condition for the surviving spouse under the life estate is proper maintenance and upkeep of the real property, which would vest in the late spouse's descendants upon the death of the surviving spouse.
Because the financial burdens of this legal arrangement sometimes created problems, Florida legislators approved a slight change to the law last year. As of October 2010, a surviving spouse has had a choice to retain the life estate or opt for a half-share of the property with the late spouse's children in a "tenancy in common."
This change may have significant implications for individuals in second marriages who created estate plans before this amendment took effect. As a tenant in common, the surviving spouse -- or the late spouse's children -- may be able to compel a sale of the property against the late owner's original intent. A consultation with an estate planning lawyer can help individuals make smart decisions about their estate plans based on this and other changes to Florida probate laws.
Article provided by Law Office of Douglas A. Oberdorfer, P.A.
Visit us at www.oberdorferlaw.com