Have you ever wondered who would get your house at your death? I recently talked with a widowed client whose wife died about ten years ago. He wanted us to help him get his wife’s house (their home) into his name. For some reason, when the house was purchased, it was only titled in his wife’s name.
This process should be pretty straightforward. We petition the court to determine that the house was his wife’s homestead so that it can pass to my client. Easy, right? Well, I asked an innocent question (one that needed to be asked) and the result changed drastically. My question was “did your wife have any children?” He said yes, which lead to my next question “are they your children as well?” He told me that they were not his children, and in fact, he did not know where they were.
Unfortunately, his wife died without a Last Will, which is called dying intestate. Under the Florida Statutes, his wife’s home will pass so that my client will get a life estate interest in the house and the remainder will pass to her children. This is, of course, quite different from what he expected and likely what his wife would have wanted. No doubt that his wife would have wanted and/or expected that their house would have passed solely to her husband at her death.
This rule is premised on the idea that if someone has a home in their individual name, they’d probably leave it to both their spouse and children, specifically if the children were from a different relationship. If that person did not have a Last Will, then the State will make this devise happen by Statute.
How could this have been avoided? Had the decedent either (i) titled the home in joint ownership with right of survivorship, or (ii) made a valid Last Will, the house would have passed to her husband. Interestingly, though, if someone dies with a Last Will that leaves his house to his wife, but has minor children, his wife and minor children will “share” the house regardless of the language from the Last Will.
Confused? Don’t worry. We are here to help. If you want certainty in the disposition of your home, and your other assets for that matter, feel free to give me a call. I love this stuff!