An illustration of a house torn down the middle by probate

A House Divided

Woes of Probate

An illustration of a house torn down the middle by probate

Is it true that when my husband dies our home automatically transfers to me even though my name was never included on the property deed? There is no simple Yes or No answer. FLORIDA HOMESTEAD LAWS can be very complicated and problematic for intended heirs. Consider the following client example.

When Mary married Joseph he owned his own home outright. It was Joseph's second marriage. 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 told Mary that there is 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 the Joseph's home outright upon his death. Joseph was completely wrong on Florida law and following his death, his mistaken belief complicated Mary's and their children's lives as well as the lives of the children of Joseph's first marriage.

Mary had to make a decision on how to hold her household together. Because Joseph died without a LAST WILL & TESTAMENT Mary was required to probate the family home by hiring an attorney to manage a PROBATE in court. This process took her almost a year to conclude the transfer of ownership. During the process, Mary was required to decide to choose one of the following options. Either option forced the condition of a HOUSE DIVIDED.

  • Option One was to accept a life estate interest in the home which would allow Mary to live in the home 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 neither be able to sell the home nor refinance it because she would not own it. Furthermore, if Mary were to move out of the home she would give up her right to the life estate.
  • Option Two was to receive partial ownership together with the Joseph's 4 children from both marriages. Although Mary would be entitled to own a 50% 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 5 owners.
  • Had Joseph simply added Mary's name to the deed, there would have been no need for PROBATE and Mary would have owned the family home outright without sharing it with the children of Joseph's first marriage.

Before you unintentionally impact the inheritance of your family home causing a HOUSE DIVIDED, do the right thing by visiting an Orlando estate planning lawyer Jackson Law to prepare your estate today.