What if my Husband left the house to his children?

One issue that comes up occasionally is where a spouse, usually a husband, owns a house by themselves and their will tries to leave the house to someone other than their spouse.  Under most circumstances, you can’t do that in Florida.
Without going into an extended discussion of the finer points of the law, essentially the problem is this. If the house was the homestead, that is, the primary residence of the deceased spouse or was the residence of the surviving spouse or the residence of a minor child, in other words, this was where they lived in Florida and they were Florida residents, that house is homestead.
Florida law limits how homestead can be devised where someone dies with either a spouse or a minor child.
If someone has a minor child, the house cannot be devised.  Period. End of discussion.
If there is a surviving spouse, and no minor child,  then the only way the homestead can be devised is to the surviving spouse.  However, all of the house must be devised to the surviving spouse; the house cannot be left half to the surviving spouse and half to someone else; or leave the surviving spouse a life estate and the remainder to someone else.  If the will attempts to leave the less than all of the house to the surviving spouse, then the attempted devise fails.  In plain language, it is no good; the estate is intestate with respect to the homestead.  This trips up even experienced probate lawyers; I’ve been involved in probate litigation over this, and in some cases, even some very smart probate attorneys do not ‘get’ this point. Where a married decedent who is survived by a spouse and no minor children attempts to devise a homestead to someone other than the surviving spouse, the attempted devise fails entirely and the homestead descends via intestacy under the Florida constitution, viz. with a life estate in the homestead to the surviving spouse and a remainder interest to the descendants of the decedent. Viz., Estate of Cleeves, 509 So. 2d 1256, (Fla. 2nd DCA, 1987) (Devise of less than whole homestead to surviving spouse fails); In re Finch, 383 So. 2d 755, (Fla. 4th DCA 1980) (Devise of life estate to surviving spouse, remainder to daughter, failed; entire fee simple estate must be devised to surviving spouse).  What does not happen is the spouse getting a life estate and whoever is in the will getting the rest, unless whoever is in the will would take the identical share under intestacy.  In other words, if the will leaves half of the house to the wife, and half to one of three children, the wife does not get a life estate in the house and a remainder to the one child; the entire devise fails and the wife gets a life estate and all three of the children take equal shares in the remainder; even if the other two were explicitly cut of the will.
This is black letter law in Florida. The only exception to this is where the surviving spouse has given up her homestead rights in writing; usually in a prenuptial agreement.
If you are in this sort of situation, if your spouse owned the home  you live in and tried to leave the house to someone else,  you need to contact an attorney to review your rights.  This is one of those things that needs to be brought to the attention of a judge; not all lawyers and not all judges may realize that this is the case.  If you have questions about your rights regarding homestead in The Villages, Florida, please feel free to contact my office.

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6 Responses to What if my Husband left the house to his children?

  1. Gina says:

    What if the decedent devises a Life Estate to surviving spouse (for whom is not the adult children’s father), and the decedent specifically devises the homestead to one child, and devises other assts to the remaining children? If I am reading the FS correcty, if the decedent owned the homestead solely and dies with a spouse and no minor children, she must give a life estate to spouse, but can devise the remainder. Please advise. Thank you.

    • admin says:

      Generally, based on the facts that you set out above, the whole thing is going to fail. Under most circumstances, the ONLY homestead interest decedent can devise to surviving spouse is Fee Simple Absolute interest; not a life estate. IF decedent spouse attempts to devise less than fee simple absolute, then the whole devise fails and it passes by intestatcy, as though there were no will. See Estate of Cleeves, 509 So. 2d 1256, (Fla. 2nd DCA, 1987); In re Finch, 383 So. 2d 755, (Fla. 4th DCA 1980).

      This is assuming that 1) surviving spouse has NOT executed homestead waiver either before or after marriage; and 2) that none of the children are minors.

  2. Debbie says:

    What if there are children of a long term first marriage (one adult child and one minor) and each spouse wants to leave their 1/2 to the children directly to protect that 1/2 interest for their children in the event of remarriage of the surviving spouse after death? I have seen too many second marriage spouses take everything upon the original surviving spouses’ death and leaving nothing to the children of the first long term marriage. Is there any way to protect the children’s interest after the death of either spouse of this long term first marriage from the second marriage spouse? the homestead is jointly owned and is the primary concern. Thank you.

    • admin says:

      Long story short is, you probably should talk to a lawyer about the details. A couple of different approaches could be taken, but all of them would involve some sort of deed re-titleing the house, and maybe joint waiver of homestead rights, but it could be done.

  3. Linda says:

    If the husband owns the home entirely, quit claims it to his children from a previous marriage and records it, does the spouse have any rights after he dies?

    • admin says:

      You probably need to talk to a lawyer about the details; assuming, though that 1) husband lived in Florida 2) that the house was homestead, i.e, primary residence of husband and 3) there is no prenuptial agreement or other waiver of homestead rights by wife, then, yes, something can probably be done; basically you would file suit to ‘void’, ‘set aside’ or ‘vacate’ the deed. But details matter and there are time limits in which to bring suit.

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