Spouse's right to homestead in Florida: Death vs. Divorce


In Florida, even if the homestead in only one spouse's name, even if that spouse bought it before marriage, the other spouse automatically has rights to the home. These rights differ depending on death or divorce.


Attorney Tom Olsen: Mike, you're on News 96.5. Go ahead.

Mike: Yes, Tom. Let me start at the beginning here. My wife passed back in '14. We had a living trust made for my two children to receive beneficiary. Well, I've sold that house since she died and I bought another house here in Titusville. Now, I married another woman. It's been about three and a half years. Now I have feelings that she's got less than honorable intentions. Here's my question. I was told that in the state of Florida, once you marry, they gain 50% of your assets or your home.

Attorney Tom Olsen: Well, Mike, the answer is maybe. Mike, by the very fact of being married, here in the state of Florida, your spouse is automatically entitled to certain rights to your estate. One has to do with your home. If you passed away, no matter what your will or trust says, Mike, your wife could step in and say, "I either want a life estate in the home or I want 50% of the home." Then one has to do with everything else and that is she's entitled to 30% of everything else, whether it's IRAs, bank accounts, life insurance. You name it. Yes, Mike, you're right. She's entitled to a share of it.

Chrissy: Right. But also, Tom, talk about if they were to get divorced and about possibly a post-nup, because if the house-- If they were together versus before-

Attorney Tom Olsen: Yes. She could waive those rights if she would be kind enough to sign a post-nuptial agreement, but based on what your short story to me, sounds like she would never do that. The other thing, Mike, is that if you get divorced, you are going to leave with what you brought into the marriage. If you are really, really, really, really concerned that this is her intentions is to just stay married to you to get a chunk of your estate, then you may want to think about divorcing her.

Mike: Okay. Contested or uncontested and just be done with it, right? I mean it's not something that has to be dragged out. She decides that she wants to just get out of it and say, "Okay, what you walked in, what you leave. What I walked in, I leave," and we just go our separate ways. My question was I bought the house and paid cash for it before I even married her and she's never even moved in here. I was wondering if I could sell the house without getting in a hassle with her.

Attorney Tom Olsen: Mike, because you are married, even if though the house is titled in your name only, you cannot sell the house or refinance the house without her signature. That's because you're married and it's your homestead. Mike, as far as the fact that you paid cash for the house, you owned it prior to getting married, that only makes a difference if you get divorced. It means you're going to leave with the house. If you die still owning that house, yes, she's going to have a right to take half of it if she wants to.

Mike: Automatically. Okay.

Attorney Tom Olsen: If she wants to.

Mike: I'm worth more dead than I am alive [laughs].

Attorney Tom Olsen: To her, maybe.

Mike: Okay. Thank you. Thank you, Tom. I appreciate your knowledge.

Attorney Tom Olsen: You're very welcome, Mike. Good luck to you.