Upon my spouse’s death, does our home automatically transfer to me even if my name is not on the property deed? There is no simple answer. Florida homestead laws can be complicated and problematic for intended heirs. Consider the following client example.
When Mary married Joseph, he owned his own home outright. Mary and Joseph had two children together, and he also had two children from a previous marriage. In the interest of their immediate family, Mary suggested that Joseph add her name on the deed to their house. Joseph said there was no need to spend money to change the title to the deed because the state of Florida recognizes Mary’s right of survivorship, meaning she will automatically inherit Joseph’s home outright upon his death. This is not the case. Following his death, Joseph’s mistaken belief complicated Mary’s and all four of his children’s lives.
It was never Joseph’s intention to divide the family home by unintentionally giving an interest of it to children of a previous marriage. It was always his intention for Mary and their two children to own the home should they survive him. His failure to understand property law and to prepare estate planning documents caused the home to be divided between Mary, their two children, and the two children from Joseph’s first marriage.
Since Joseph died without a last will and testament, Mary had to hire an attorney and probate the family home through court proceedings. It took almost a year to conclude the transfer of ownership through this process, during which Mary was required to make an important decision about how to hold her household together.
Option one was to accept a life estate interest in the home. This would allow Mary to live there until her death, but the house would be titled in the names of her children and the children from Joseph’s first marriage. Mary would not be able to sell or refinance the home because she would not own it. Furthermore, if Mary were to move out of the home, then she would give up her right to the life estate.
Option two was to receive partial ownership together with Joseph’s children from both marriages. Although Mary would be entitled to own a 50 percent interest, any of the children – hers or those from Joseph’s first marriage – could attempt by law to force the sale of the property. Unless a court order states otherwise, any final decision to sell the property would require the consensus of all five owners.
Had Joseph simply added Mary’s name to the deed, probate would not have been necessary. Mary would have owned the family home outright without sharing it with the children of Joseph’s previous marriage.
Before you unintentionally impact the inheritance of your family home, causing a house divided, consult with an estate planning attorney to prepare a will, trust, life estate deed or some other type of estate protection.