Spouse's rights to homestead in Florida

In Florida, your spouse automatically has right to the home you live in even if it's in your name only.

Attorney Tom Olsen: Gina, you're on News 96.5, go ahead.

Gina: Hello?

Attorney Tom Olsen: You're on the air, go ahead.

Gina: Hi. I had a question. My father purchased his house as an unmarried man with a reverse mortgage, and then he married. His wife moved out over six months ago and they have decided to not get a divorce.

Attorney Tom Olsen: All right.

Gina: Our question is, he has three biological children and we have two things that we're concerned about his healthcare if something was to happen to him, that we're able to take care of that as his children. Then, if something was to happen to his house, he has a car, house and no bank account, and his car, what type of document would we need to have in place to make sure his wishes are-- everything is the way he wanted to be towards his biological children?

Attorney Tom Olsen: As far as health care decisions are concerned, the doctors, if it came down to it are going to naturally look to his wife to make those decisions. If your father wants his children to make those healthcare decisions, he should have a healthcare surrogate form saying that, okay? The next thing is, is that by the very fact of being married, his wife, even though they're separated and living apart, she is automatically going to have rights in that home when he passes away.

He might very well have a will that says, "When I die, I leave everything to my children," and yet she could step in and say, "I don't care what his will says, when he passes away, I want my rights to this home." Gina, with that said, tell me do you have any other questions?

Gina: I guess no. Then there is no document that he would be able to have if they don't plan on joining back together as a husband and wife. The only option then you're saying, because they just don't want to go through the hassle of it, would be then to really get a divorce.

Attorney Tom Olsen: Let's say this, we now know that she has rights to his home even though they're separated and she lives in another home, she could waive those rights in writing. If she's in agreement that when your dad passes away, this home would automatically go to his three kids and she's willing onto sign on the dotted line saying that, then, Gina, let's get this done.

Let's get your dad down to my office and get his wife down there as well, either together, they don't have to come in together to sign things, and have her sign that and we'll make things go simple, easy, inexpensive for your dad when he passes away, Gina.