In Florida, your spouse automatically has rights to the homestead
In Florida, your spouse automatically has rights to the homestead even if it's in your name only.
Attorney Tom Olsen: Ken, you're on WDBO.
Ken: Hello, good morning.
Attorney Tom Olsen: Hey, Ken, you're on the air.
Ken: My question is, I recently got married and I have a house that's in currently did it in just in my name and I have two kids. What's the best way to ensure that when I pass away it goes to my two kids? Do I change the deed or do I do a will or something?
Attorney Tom Olsen: Ken, did you do a prenuptial or postnuptial agreement with your wife?
Ken: No.
Attorney Tom Olsen: Ken, by the very fact of being married, your wife automatically has rights in that home if you pass away, and that's under Florida's elective share law. You just need to understand that. Now, Ken, if you want to work around that, we certainly can but if you want to ensure that when you pass away, this home goes straight to your kids, you're going to have to get your new wife to sign off on that.
If you said, "Tom, rather what I want is if I pass away, I want my wife to have a life estate, the right to live there for the rest of her life, and then goes to my kids, well, that we can make happen without your wife's knowledge, signature, and consent, but if you wanted your present wife to have no rights to that home when you pass away, that the home goes straight to your kids when you pass away, she's going to have to sign on the dotted line to make that happen.
Ken: Even if I do a will or to transfer the deed?
Attorney Tom Olsen: Right now, Ken, you could not convey that deed to your home, you could not refinance that home without your wife's signature and consent. I'm talking that she has rights to it both during your lifetime and upon your death. If you said, "Tom, hey, I'll just deed it to my kids today", no, you can't do that without her signature.
Ken: Even though I just got married to her?
Attorney Tom Olsen: Whether you're married for one day or 15 years, that's not going to change my position.
Ken: If I get her consent then I can deed it to my kids. Is that the best way or do I just put in my will?
Attorney Chris Merrill: Consent. In writing.
Attorney Tom Olsen: Ken, no, putting it in your will is not going to solve the problem. Why? Because you're signing that will, she's not signing it. She hasn't agreed to it to go to your kids directly when you pass away. What I'm saying again, Ken, is that if you want this home to go directly to your kids upon your death, she gets nothing as far as this home is concerned, it will require her signature to accomplish that.