What if the husband cuts the wife out of the will? (Part 2)

Last time we talked about what can happen when a husband leaves a wife nothing under a will.  We explained Florida’s Elective Share Statute.
There is another aspect to this; what happens if the deceased spouse leaves the house to someone other than the wife?
Florida is very protective of surviving spouses and families. One of the ways Florida protects spouses and families is by our Homestead doctrine.  Homestead in Florida has several aspects; most Villages residents are familiar with the property tax exemption, where Florida reduces the tax assessment on the property used as your home.  But there are other aspects to Homestead protection; one of which is that Florida makes it very difficult under most circumstances to force a sale of the home to pay debts; there are some exceptions for mortgages, taxes, and homeowners association fees and some Bankruptcy cases, but generally if you owe a lot of money to someone, they can’t force  you to sell your home to pay that money.
The other major aspect of Florida Homestead has to do with what is called ‘descent and devise’; generally speaking, if someone has either a minor child (under the age of 18) or a surviving spouse, Florida does not allow that person to leave the house to someone other than the minor child and/or the spouse when they die.  Usually, if they try to do so, a judge will find that the attempted devise was invalid; the judge will throw out that portion of the will.  But you need to get this in front of a judge; this is not necessarily automatic and won’t happen by itself. If your spouse has done this or tried to do this, you need to contact a lawyer immediately and discuss what your options are.  There are a few exceptions to this, the two big exceptions are where there is a prenuptial or postnuptial agreement, where the surviving spouse has agreed to let this happen, and where the deceased spouse had put someone else on the deed during their lifetime, and the property passes by Joint Tenancy with Right of Survivorship; but even in that case, you need to contact a lawyer to see whether the spouse had the legal right to do so. And if they did have the legal right to do so, you might be able to file an elective share case to try to recover some of the value of the property.
Additionally, if the surviving spouse manages to get the devise set aside and recover the property, what the surviving spouse gets is going to depend on whether or not there are children of the deceased spouse; under those circumstances, the surviving spouse is probably going to get a ‘life estate’, meaning she owns the house for her lifetime, but after she dies the house goes to the children. If that is the case, then the surviving spouse can file an election to take a half interest in the house; the surviving spouse will own half of the house and the other half will be split between the deceased spouses children or descendants. But, and this is very important, under most circumstances the election must be filed within 6 months of the date of death of the deceased spouse. In other words, the surviving wife must decide and draw up and file the paperwork within 6 months of the husband dying
This is a very complicated area of the law, and there are very short deadlines. If you live in The Villages, Florida, and have a question about  your rights when  your spouse dies, you need to contact an attorney immediately.  I handle probate matters in Lake, Sumter and Marion Counties and handle will contests all over the state. If you have a question, please contact my office.

This entry was posted in Elective Share, Homestead, Probate, Real Estate, Will Contest. Bookmark the permalink.

One Response to What if the husband cuts the wife out of the will? (Part 2)

  1. admin says:

    I don’t know. I doubt it would be ‘fraud’; I don’t know what husband told lawyer, I don’t know what lawyer told husband, and I don’t know what else is in the will. You definitely would have to file a petition to determine homestead status; You might have to file a petition to construe will; you might also consider filing an election to take a 50% interest in the house in fee simple; but that would have to be done within 6 months of husbands death.

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