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