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The Florida Homestead Rules Can Create Surprises When Making a Will in Second Marriage Situations

When spouses say "I do" they automatically acquire certain rights in each other's property. In Florida, one of those rights is called homestead rights.

The homestead is the house that the couple lives in as the marital home. It doesn't matter that only one of the spouse's names is on the title to the marital home, the homestead rights still attach to the property. The homestead rights are designed to make sure that the surviving spouse does not suddenly lose his or her home upon the death of the first spouse. However, in second marriage situations, sometimes this protection for the surviving spouse is a surprise and upsets the estate planning goals of both spouses.

For example, let's say husband owns the home he lived in with his first wife for 30 years before she passed away. He has adult children who still have fond memories of growing up in the "family home". Husband meets wife #2, gets married and wife #2 moves into husband's home with him. Wife #2 does not have her name on the deed to husband's home, but lives there with husband with the intent to make that house their marital home.

Husband and wife #2 both agree that the house will go to husband's children upon his death, not to wife #2 and this is what husband puts in his will. However, husband and wife #2 being in agreement and husband putting this in his will is not enough to make his wish happen. Unless husband and wife #2 enter into a prenuptial or postnuptial agreement in which wife #2 waives her homestead rights in the house, upon husband's death, the Florida homestead rules are going to automatically give wife #2 an ownership interest in the house along with husband's adult children.

Second marriages are joyous occasions, but they are also occasions that require some legal advice and planning in order to avoid surprises, especially if either spouse has children from a prior marriage.

Categories: Wills, Estate Planning
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