Dealing with the death of a spouse is an emotionally distressing situation. What happens if a husband dies with a house solely in his name while leaving a surviving wife in Florida? Keep reading to find out.
Florida Homestead Property – Understanding the Concept
The Florida Constitution defines homestead property as an individual’s principal residence within a municipality on lots up to one-half acre or a residence outside a municipality up to contiguous 160 acres.
Article X, Section 4 of the Florida Constitution provides that no creditor’s judgment can force the sale of a homestead to satisfy the owed amount (with a few exceptions). Also, recorded judgments do not attach to a homestead or become a lien against the property.
The same section specifies that “the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. ”
Additionally, “the owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.”
What Happens If My Husband Dies and the Florida Homestead is in His Name?
In many cases, the best approach for married couples is to hold the title of a homestead under tenancy by the entirety. This form of ownership is exclusive to married couples in Florida.
Different from other forms of joint ownership, each tenant by the entirety owns the entire homestead instead of holding a partial interest in the property. In such a case, both tenants are entitled to the rights of survivorship.
If one of the spouses dies, the surviving spouse automatically becomes the sole owner of the property without the need for probate. Dealing with a situation in which a homestead was titled solely in one of the spouse’s name is more complex.
If a husband dies without having added the wife to the title of the homestead, it may be subject to probate. The situation is even worse if the husband dies without creating a will, leaving the surviving wife’s share in the home exposed to intestacy laws.
While the surviving spouse has several rights under Florida intestacy law, the lack of a proper last will creates unnecessary problems once the property’s owner is dead. Surviving spouses are entitled to a life estate in the homestead while the decedent’s children have a remainder interest.
This type of division tends to result in problematic situations, such as:
- Hardship to refinance an existing mortgage on the property
- The person entitled to a life estate in the property needs the consent of the remainder beneficiaries to manage, transfer, or sell the property.
Ultimately, each case is different. Consult with an expert attorney to find a strategic solution for your case.